旅游契约履行辅助人之责任——以台湾地区法院实务见解为中心

The Responsibility of the Travel Organizer for the Assistant of Perform in Travel Contract:Focusing on the Decisions of Taiwan Residents Court

在旅游业实务上,旅行社往往未经旅客同意,即将其业务转给其他旅行社,再由该其他旅行社委托他人实际提供食宿、交通运输等服务,此种"多层次转包"的现象颇为常见,尤其在国外旅游的情形更属常态,但一旦发生旅游事故及纷争,相关责任归属即成问题。本文依台湾地区法律规范及法院实务见解,分别介绍旅游契约之法律关系,其中涉及旅行业者与旅客之契约当事人关系,及旅行业者与履行辅助人之关系,并分别就侵权与违约责任两大部分加以阐析。

The perform of a package travel contract relates usually not only to the travel organizer and traveler, but also to the persons whom the travel organizer uses to perform his obligation, so called assistant of perform. If the assistant of perform unlawfully injures the life, body, health and property of the traveler, the travel organizer is liable to make compensation to the traveler for the damage arising from this. Furthermore, the responsibility of the travel organizer could include damages for breach of contract and liability in damages. According to the Taiwan Residents Civil Code, the travel organizer is responsible for fault on the part of the assistant of perform whom he uses to perform his obligation, to the same extent as for fault on his own part. Meanwhile, the Consumer Protection Act has imposed the responsibility regarding liability in damages on the travel organizer when the assistant of perform unlawfully injures the life, body, health and property of the traveler. Since it is normal to use the third party to perform the obligation of travel contract in practice, this criterion has significant meaning with respect to the responsibility of the travel organizer.