On The Civil Liability Of Group Travel Agency For Violating Security Guarantee Obligations

Following the publication of the "Provisions of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Tourism Disputes" in 2010,the "Tourism Law" has also passed by the Standing Committee of the National People's Congress in 2013.As a result,the trial of China's tourism dispute cases has a more clear legal basis.This article focuses on the civil liability arising from the violation of the security protection obligations of the group-organizing travel agency.This paper is divided into five parts:In the first part is the nature and sources of the safety guarantee obligations of the travel agency,which leads to the core issues that this paper would like to discuss.It concludes that four key points in the analysis of the civil liability of the group-organizing travel agency for violating security guarantee obligations,which lead to the tourists' personal injury and property losses.The four main points are the contents of the safety guarantee obligations of the group-organizing travel agency,the types of civil liability of the group-organizing travel agency,the assignment of the civil liability between group-organizing travel agency and the performance assistant,and the group-organizing travel agency to violate the safety control duty the responsibility to undertake.The second part is a detailed exposition of the contents of the safety guarantee obligations of the group-organizing travel agency.The contents of the safety guarantee obligations of the group-organizing travel agency are the basic issues that must be clarified when the group-organizing travel agency are found to have violated their safety and security obligations.The safety guarantee obligations of the group-organizing travel agency are mainly in the following five aspects: First,the selection of qualified performance assistants.The specific content of this obligation differs according to the performance of the assistant.The second is to inform the tourists of the dangers that may be encountered during the travel itinerary.Through warnings,the tourists are made aware of the relevant dangers and take necessary precautionary measures.The third is to take necessary measures to prevent the tourists' personal and property safety from being threatened or actually damaged;If the tourists' personal or property safety is in danger or has been damaged,the group-organizing travel agency should provide assistance.The fourth is to fulfill the duty of safety prompts during the free activities of tourists.During this period,group-organizing travel agency have to provide assistance to tourists who need help.The fifth is to properly preserve the property oftourists and take proper care of special tourists such as the sick and the disabled.The third part focuses on the analysis of the type of civil liability of the group-organizing travel agency.It mainly includes the following three situations: breach of contract responsibility,tort liability,breach of contract liability and tort liability concurrence.The determination of the liability for breach of contract by the group-organizing travel agency is not based on the fault.If a group-organizing travel agency has a situation that fails to fulfill,improperly fulfill or refuses to perform its obligations under the package tour contract,and cannot prove the existence of an exemption,it has to take the responsibility for breach of contract.The reason why the group-organizing travel agency assumes tort liability is that there is a causal relationship between the behavior of the group-organizing travel agency that violates the security protection obligations and the personal injury and property loss of the tourists.This is a fault liability.The difference between liability for breach of contract and tort liability is mainly reflected in the scope of compensation,the burden of proof and the manner of liability.Tourists can choose the one which can protect their rights and interests at the highest level when defending their rights..The fourth part discusses the configuration of the civil liability of the group-organizing travel agency and the performing assistant.In specific cases,the performing assistant is also involved in many tourism disputes.This article considers that the contractual relationship between the the group-organizing travel agency and the performing assistant is a contractual relationship performed to a third party.Under this relationship,if the personal and property rights of tourists are damaged due to the performance of the performing assistant,the principle of contract relativity shall be strictly observed from the perspective of liability for breach of contract.The performing assistant is not a party to the package tour contract,so it will not be liable for breach of contract.The group-organizing travel agency is the bearer of the liability for breach of contract on the package tour contract.The group-organizing travel agency can only claim compensation from the latter on the basis of the contract concluded between it and performing assistant.From the perspective of liability for tort,if a tourist defends his or her legitimate rights and interests by filing a complaint of infringement,then the group-organizing travel agency and the performing assistant can all become the liability subject.The provisions in the “Provisions of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Tourism Disputes Cases” and the “Tourism Law” have different provisions on the liability for tort of group-organizing travel agencies.The former stipulates that the group-organizing tour company shall not assume responsibility for supplemental duties unless it carefully chooses to perform the assistance.The latter stipulates that the group-organizing tour company should be jointly and severally liable for the performance of the assistance.This article believes that in determining the tort liability of a travel agency,it should be treated differently depending on whether or not there is any error.The fifth part analyzes the responsibility for breach of security obligations which the group-organizing travel agency should take on.If the group-organizing travel agency violates the security guarantee obligation due to the emergence of force majeure factors,and the tourists' own reasons or the public transport operator,then the civil liability of the group-organizing travel agency may be exempted or reduced.If the group-organizing travel agency does not have the three types of exemption,it should undertake civil liability through continued performance,remedial measures,and compensation foe damages.