The Study Of The Legal Problems On The Protection Of Passengers’ Right Under The Flight Delay In China

"Flight delay" is a problem accompanying with the development of civil aviation. In the Civil Aviation resource net, CADA(Civil Aviation Data Analysis) recently released the 2014 annual punctual reports concerning the punctuality analysis of regional airport, airlines, aircraft flight. And it points that in Chinese mainland airports the average rate of taking off is 65.44%, the passengers and crew spent the time on waiting for the taking off accumulated up to 122051896 minutes. According to the aviation consumer complaints situation analysis report from 2011, we can see that complaints of the flight delay rows to the top. And consumers’ right protection under the flight delay is always a problem which is not improved substantially over years. Why would that happen? This essay would take the angle of that problem analyzing the passengers’ protection under flight delay.First, air transport constitutes the legal relationship between the carrier and the passengers. The protection of passengers should first take the angle of contract. From the convention involved adjusting flight delays and the early law in European and American countries, we find that is true. With the development of the consumer movement, and the value’s transition of pursuing essential justice of the modern civil law, we recognized another identity of the passenger, the consumer, while we protected the contractual relationship between the parties. We modify the civil law system to protect consumers, a vulnerable group, based on principles of honesty and credit and the concept of substantial justice. But it seems not enough to protect consumers’ right completely.Through the study of law, scholars’ research and the cases in the European and American countries, we found that the European Union and the United States have successively introduced particular law for the consumer protection under the flight delays, especially for the consumers’ right of knowing and being taken care of respectively.After the studying our country’s legal norms and practices, we found that there are some problems in the legislation in our country for the flight delay. There is no specific legislation concerning the flight delay. And the relevant regulations normally referred to the contract law and the civil aviation act from the angle of contractual relationship, which is not complete and very broad, rather than the perspective of consumer protection. However, in some administrative regulations, it does exist the consumer protection of delay, but on the one hand, these specifications are more department regulations, normative documents and local regulations. The effectiveness is low and can’t completely protect consumers in a nationwide area. On the other hand the rules themselves are more macro, rugged, and lacking of operability and supporting measures of consumer rights protection. Considering the consumers’ rights and interests protection act, it only refers to the general rights of consumers, but the consumers’ right under the flight delay have its own characters which is unable to be reflected in that act.And we found that the practices of our country is always from the contractual relationship between the carrier and the passengers, and it pays less attention to consumers’ rights and interests.Therefore it is necessary to improve the legal protection of flight passenger in our country. And after the study and the analysis of relevant law, theory and the cases in the European and American countries, we can chose and take advantage of their merits into legal system. But in the process of modifications, we should pay attention to the balance of the interests between passengers and the carrier. That means if we protect consumer excessively, it will burden the carrier definitely. Finally the burden would be transferred to consumer himself or herself. In a whole, we should take the value of balance to protect consumers under flight delay by establishing the specific rules for passengers’ protection in the angles of contractual relationship and the consumers’ identity.Thus this paper is divided into three parts.The first part has analyzed the related regulations and judicial practice for flight delays. Combined with the present protection concepts in the field of air transport, this part points out the legal problems for the protection of the interests and rights of the passengers under the present stage of delays in our country,The second part, through combing to the question in the previous chapter, it analyses the the problem existing in the field of air passengers’ right to know, damage compensation, right of care. At the meantime it also analyzes the advantages and disadvantages of foreign relevant protection of rights.The third part, on the basis of the analysis of the existing problems in our country, from the concepts to the concrete regime, combs out a way to improve the passengers’ right by borrowing the relevant system of the Europe and America rationally, and put forward the improvement measures for dispute resolution system under flight delay in China.