Research Into Certain Legal Issues Of Traveling Contract

As a result of China's reform and opening-up policy's unceasing deepening, our country has already been a pivotal tourist destination in this world. However, what does not adapt with the tourism development is that the traveling contract was kind of nameless in our country's legislation. China has not specifically aimed at the legislation for traveling. This legislative flaw has directly caused various troubles in the judicial practice. Facing frequent dispute about traveling contract, the current stipulation's limitation is more and more obvious. Therefore it is vitally significant to study the legal traveling contract. The author carries on the elaboration in view of several typical and controversial issues in the traveling contract.This article altogether divides into four parts, besides the introduction and the conclusion.The first part is a fundamental legal matter research about the traveling contract. Firstly, the author makes it clear about the concept, the characteristic and the nature of the traveling contract. Following the analysis and the comparison of traveling contract concept from various countries and areas, the author has made the scientific limit to our country's traveling contract, and has pointed out that the so-called traveling contract refers to the bond signed between the traveling businessman and the tourist, in which travelling businessman provides the tourist service and the tourist pays for the traveling expense. Since the nature and characteristic of traveling contract is closely similar to contractor's agreement, the author has approved that they are the same. Secondly, the author has defined the litigant and the third payer in the traveling contract, based on the analytical study of the main body and the content in its fulfilling process. Then, the author has proposed the recognizable standard to the tourist and the traveling businessman combined with the characteristics of tourist activity. As a matter of fact, the author believes that it is more appropriate to take the conception of tourist assistant than the actual payer's legal status. What's more, the author has clearly stated both parties' right and duty, of which tourist's right and the traveling businessman's duty is the kernel. Specifically speaking, this article further elaborates such tourist's right as the right of non-violated tourist's body and property safety, enjoying the tourist service, asking to be recompensed for the slight defect, expiring the contract, as well as traveling businessman's contract duty, such as safety control duty, tolerance duty, and slight defect guarantee duty. The purpose for doing so is to better protect tourist's legitimate rights and interests.The second part is the research related to formatting issue of traveling contract. The author has analyzed the reason, simultaneously argued its advantages and disadvantages, and emphatically put forward the proposal for stipulating rules and regulations from three aspects of the legislation, the administration, and the judicial. That is to say, our law should strengthen the formatted traveling contract rules and regulations, thus achieve the ultimate goal to protect the tourist's rights and interests. Specifically speaking, in the aspect of legislative rules and regulations, experts should make a explicit legal limit to traveling contract, to its applicable form,provisioned scope,subscribed procedure,recorded item such as tourist route, the shopping show, the compensation, the expiration, the invalidity and so on to consummate them. Naturally our society can achieve every legal support by regulating in anticipation, The author has suggested that, in the concrete implementation, china legislation should make the contract provision famous as soon as possible, and in the administrative aspect, also must try to formulate the complete formal traveling contract demonstration text, so as to attain the goal to be examined in anticipation and supervised afterward. In the formal traveling contract's judicial aspect, the author has advised that we should carry on the potency examination to its disclosure, make the judicial interpretation to the formal traveling contract terms, which pays great attention to protecting the tourist rights and interests.The third part is the research into the spiritual damage compensation for violating the traveling contract. The author has analyzed the development of spiritual damage compensation theory overseas as well as from our country's Taiwan area, opposed such related violation spiritual damage compensation theory as unpredictability theory, the estimation and said evidence-difficultly theory, the punitive compensation theory, and the transaction barrier theory, finally emphasized that it must be suitable to get the spiritual damage compensation in certain circumstances of violation, particularly violating the traveling contract. But simultaneously, while affirming that the tourist enjoys spiritual damage compensation, our law must make the strict limit to this request scope. Firstly, the traveling businessman's serious violation must do serious energetic harm to the tourist. Secondly, the pain that the traveling businessman's serious violation creates to the tourist must achieve the certain extent. Thirdly, our legislation must definite the suitable amount of spiritual damage compensation according to violating degree and actual solvency margin of traveling businessman. Finally, the injured party must have the duty to reduce the received loss as far as possible. In brief, the spiritual damage compensation caused by violation should be the principle of equality. In fact, the limitation in principle determines whether everyone who has received the energetic harm to obtain the compensation. Only those phrenalgia that are not in the limit will finally obtain the compensation. This stipulation not only can guarantee the legal fairness and justice, but also may prevent the malicious lawsuit hindrance to the development of tourism.The fourth part is the tentative plan for constructing our country's traveling contract system. How to strengthen the dispute solution and to protect the tourist's legitimate rights and interests are urgently waiting to be solved along with the rapid development of our country's tourism. Undoubtedly, the traveling contract can provide the outlet famously and easily solve these difficult problems. According to the practical rule of contract legislation, the author has proposed the concrete provision to make the travelling contract famous to be performed. It has the following merits. Firstly, it is possible to strengthen tourist's civil law relief, reducing the occurrence of both parties'different benefit condition. Next, it is helpful to the standard adjustment of traveling legal relationship. Finally, it may enhance the referee's possible foresight. Our country should establish the complete traveling contract legal regime as soon as possible. According to the actual situation of china tourism, the legislation construction's plan for traveling contract includes the following. Formally, in the legislation, our country may supply four choices. First, china revises Law of contract, stipulating specifically in the minute by the unique seal. Second, china should draft the independent and special Traveling Law of contract. Third, china should stipulate in formulating Traveling Law. Fourth, china should stipulate when formulating the civil code to be performed. The author has announced that the fourth way is the most ideal. The law of contract is an organic composition part of the civil code, and the civil code belongs to the fundamental law, which has higher legal effect. The provision of travel contract in the code civil can enrich and consummate the law of contract standard, which is also advantageous for reference after the occurrence of traveling contract dispute. Moreover, our national civil code is being drafted just at this moment; this also provides the opportunity for the legislation of travelling contract. We should seize this chance to perfect it. Firstly, in the legislative content, it is necessary to make clear about the legal concept and nature of traveling contract, the main body qualifications of the tourist, the traveling businessman as well as actual fulfilling assistant status of paying provider. Secondly, in constructing the content of contract rights and obligations, it is essential to make every effort to be balanced between the tourist and the traveling businessman --- both parties' benefit. Thirdly, it is important to state clearly about the condition on which the traveling contract changes and expires, as well as to refine traveling contract, to enumerate the items which should be recorded in the traveling contract, and to supply the litigant the traveling contract demonstration text for the reference. Finally, it is urgent to establish spiritual compensation harm system for the breach of traveling contract.