The Study On Punitive Damages System In Tourism Law

The punitive damages mechanism of civil law in China came into being from1994in Law of the People’s Republic of China on the Protection of ConsumerRights and Interests (hereinafter referred to as Consumer Law) and have been shownup since then in other respective legal areas. As Tourism Law of the People’sRepublic of China(hereinafter referred to as Tourism Law) takes effect from Oct,2013, it is stipulated in Clause1, Article70of the act that the punitive damagemechanism shall be applied in tourism contract. In this article, we will make sometheoretical researches based on that topic.This article takes comparative methodology of research by comparing theory ofthe punitive damages from English and US, and from China. On this point, Englishlegal system differs from the US mainly in whether, or not, the punitive damagesinclude compensatory damages. And China, mainly referring to viewpoint from US,considers that punitive damages mean damage responsibilities ordered by court thatare punitive and on top of actual damages made by offender. And in this article, wealso go through some historical evolution on the punitive damages theory in China.It could be concluded that the punitive damages mechanism is on a break pointexpanding from tort field to contract from the proof that the attitude from theacademic circle has changed from objecting the idea that punitive damages beapplied in contracts to supporting the idea conditionally, and also the proof thatpunitive damage clauses have been adopted in contract field more and more bylegislatives.Aiming at viewpoint raised by some scholars that the punitive damages clausesin the Tourism Law be substitute for mental damages in tourism contracts, wediscuss our differing viewpoint in this article by taking the law hermeneutics method.Possibilities of mental damages exist in tourism contracts, mental damages may becaused by substantial breach by party of travel agency leading to fail of contractintention, therefore mental damages may be claimed. But on the other side,the punitive damages in the Tourism Law shall function firstly as punishing maliciousbehaviors of travel agencies and suppressing similar actions from others, andsecondly as a way to offset losses not fully covered by compensatory damages.Whereas, mental damages arising from breach by travel agency function mainly ascompensating mental losses and comforting victim, and punishment can only be ofit’s secondary function. By conclusion, punitive damages cannot replace mentaldamages in tourism contracts.We also analyze that in this article, main contents of punitive damages in ourTourism Law by taking the law hermeneutics method. The punitive damagesmechanism applies to the following: Parties of tourist and tourist agency, packagetour contract, breach behavior that tour agency refuses to perform under request fromtourist when the agency is able to perform, which leads to grave consequences ofpersonal retention or others, And the mechanism requires responsibilities for touragency to compensate in the sum of1to3times of tour fees expended by tourist aspunitive damages. Even though tourist belongs to one kind of consumers, tourismcharacterized in obvious personal relevance, complicated relationship involved. Sowe also compare the differences between punitive damages in Consumer Law andTourism Law. One obvious point of those is that the Consumer Law requires, asapplication condition, consumer suffering fraud, whereas the Tourism Law requiresmalicious breach by tour agency.Basic on the law Hermeneutics methodology, we also explore somequestionable or inadequate aspects of the punitive damage mechanism in ourTourism Law, and raise our suggestions on that. Firstly, the mechanism limits itssubject of liability to travel agency. But the actual tourism market includes moreoperating business other than travel agency, and furthermore, some operatingbusiness in this market can have significant impact on the tour market. So it isobviously insufficient to miss these businesses out in the mechanism, and we suggestto expand the coverage of subject of liability. On the other side, the protected subjectshall also be expanded. Secondly, the mechanism now only covers breach made bytravel agency having the ability to perform but refusing to even after tourist’s request,but in actual life, it is more common than this that travel agency commits intentionally insufficient performance, so it is of our suggestion that these kind ofbreach shall also be included. thirdly, when the sum of the punitive damages isdecided, the court shall take into consideration the following factors: the actuallosses arising from the travel agency’s breach, and subjective faults of the travelagency, breach degree, etc.