论意大利法中旅游合同之债务不履行责任的规范构成

The Normative Composition of the Liability for Breach of Travel Contract in Italy Law

意大利法区分旅游组织合同与旅游中介合同,旅游经营者被界分为旅游组织者与旅游中介,二者就债务不履行分别承担不同的责任:组织者的责任表现出客观责任的倾向,而中介的责任主要为过错责任。这种责任构成上的区分,建立在意大利法遵循结果之债与方法之债相区分的理论传统,在实证法中表现为区分债务人违反勤谨注意义务与不可归责于债务人的原因导致的履行不能。相应地,旅游组织合同中的组织者作为承揽人要为旅游服务的结果负责,中介作为受委托人仅仅为其方法—方式负责。

The Italy law distinguishes the travel organization contract and the travel agency contract. The traveling operator is divided into the travel organizer and the travel agency, undertaking different responsibilities for their nonperformance of obligation. The former is inclined to take the objective responsibility while the later takes the fault responsibility. This division of responsibility complies with the traditional theory that the Italy law distinguishes the obligation of acting and the obligation of result, which makes positive law distinct the nonperformance due to the debtor＇s failure of paying a diligent attention and the nonperformance due to the cause inculpable to the debtor. Accordingly, the organizers of the travel contract as a contractor should be responsible for the results of tourism services, while the travel agency as the fiduciary should only be responsible for the method or pattern of acting.