On The Liability Undertaking For The Tourist's Damages Caused By Performance Assistant Of Package Tour Contract

This article mainly studies on the legal liability of performance assistant of package tour contract in the case of carrying tourists' damages.In package tour,the travel agency provides tourist services through its performance assistants,so,when dispute happened,it is more complex to deal with than other kinds of tourism.In package tour,when performance assistant harms personal or property interest of tourists,the factors about definition of the assistant's connotation and extension,legal status and responsibility all affect the final solution of the tourism dispute.In judicial practice,the unclear understanding and the discrepancy between the relevant judicial interpretation and the provisions of the "tourism law" also lead judges to encounter difficulties when they apply relevant laws.This article will be launched from the aspects of the civil law theory and the current legislation of our country so as to clarify the perplexity about the performance assistants when causing damage to tourists.In addition to the introduction and conclusion,this article is divided into the following three parts.The first part is mainly about definition of the performance assistants of package tour contract.First of all,it analyzes the constitutive requirements of the assistants.Again,it compares the performance assistant with the travel auxiliary servant as well as the third person in "contract law" Article 65 and Article 121,and come to the conclusion that the concept of the travel auxiliary servant is similar to that of the performance assistant but the range is larger than the latter,and the third person in Article 65 only covers parts of the performance assistants of package tour,but it can be seen as a third person of Article 121 in the field of tourism.Finally,it discusses the legal status of performance assistant.There are two different opinions about the legal status of performance assistant,one is the debtor of the third-party beneficiary contract,the other is the implementing aid-party of debtor. After the enactment of "tourism law",whether performance assistant belongs to the implementing aid-party of debtor of traditional civil law has been intensely discussed,but for now the academic circle still can not reach an agreement.In this article,it holds the idea that the performance assistant belongs to a special kind of the implementing aid-party of debtor in traditional civil law,at the same time the ambiguous definition of performance assistant in "tourism law" is easily lead to misunderstanding,so the provisions on the performance assistant should be amended.As for the controversial public transport operator,this article determines that it belongs to the performance assistant according to the principle of "unnecessary interference in the possibility of interference".The second part is mainly about the research on the allocation of legal liability in the circumstance of breach of contract due to the performance assistant.This part analyzes the comprehensive reason why travel agency is responsible for performing assistant.And it comes to the conclusion that the theory of contract relativity and the protection of rights and interests of tourists are the main reasons.It is clear that under this circumstance,only the travel agency should bear the liability for breach of contract to the tourists,and the performance assistants do not have to be responsible to the tourists.However,after assuming the liability for breach of contract,the travel agency can claim compensation from the performance assistant in accordance with the travel assistance service contract.The third part is mainly about the study of the allocation of tort liability in the circumstance of infringement due to the performance assistant from the aspects of performance assistants' direct infringement and the aspect of third person's infringement.This part analyses the legal obligations and the constitutive elements of tort liability of performance assistants.The performance assistants should take responsibility for tourists when violating the statutory duty.However,in this case,the responsibility of travel agency transforms from supplementary liability into non genuine joint liability.At the same time,the tourism law exempts the travel agency from assuming the liability of the public transport operators for infringement,in such case travel agency only undertakes the obligation of assisting tourists to claim.