Study On The Security Obligations Of Travel Auxiliary Servant

In recent years, with the vigorous development of China’s tourism industry, tourism disputes are constantly emerging, which has already become one of the problems that influences and restricts the development of the tourism industry. In tourism activities, most of the tourism disputes arise from the violation of the security obligations by the travel auxiliary servant that causes damage to the personal and property security of of the tourists.Therefore, whether travel auxiliary servants perform or properly fulfill the security obligation, is not only related to the legitimate rights and interests of tourists that can be protected or not, but also related to whether the tourism industry makes long-term and healthy development or not.The introduction of Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases of Tourism Disputes (hereinafter referred to as the tourism judicial interpretation) in2010, makes up for the defects of our existing tourism laws and regulations of tourism disputes, in which Article7clearly defines the responsibility bearing of security obligations from the travel auxiliary servant.Security obligations of the travel auxiliary servant, as a new type of security obligations, refer to the obligations of the prevention before the event, the protection among the event and the salvation after the event, undertaken for the personal and property security of the tourists, according to law or the contract in tourism activities by the travel auxiliary servants, who are the actual provision of tourism service such as transportation, sightseeing, accommodation,etc. It is not only the product of social requirements for risk control, but also the reflection on the principle of good faith in the Civil Law.For security obligations, the academic focus has been on the security obligations of the tour operators and travel agents. But it is to be regretted that few studies are relative to security obligations of the travel auxiliary servant. This thesis is based on this, firstly, this thesis describes the concept and characteristics of the travel auxiliary servant, followed by domestic and foreign scholars on the definition of security obligations, and combined with China’s legislative, further proposes the definition of the security obligations of the travel auxiliary servant. Secondly, from the perspective of law-economics, sociology of law and Jurisprudence, this thesis analyzes and elaborates its theoretical basis, which concretely includes the theory of benefit and compensation, risk and cost, social responsibility, security, protection of human rights and advance behavior. Thirdly, based on three aspects of the obligation among the prudent prevention before the event, well-intentioned protection in the process and effective salvation after the event, the thesis elucidates the specific details of security obligations of the travel auxiliary servant. Finally, this thesis expounds the responsibility bearing for the violation of the security obligations by the travel auxiliary servant. Respectively starting from the perspective of liability for tort and liability for breach of contract, responsibility principle, this thesis analyzes the doctrine of liability fixation, constitutive requirements and specific form of liability in violation of security obligations by the travel auxiliary servant, in order to guide the study on security obligations of the travel auxiliary servant.