Research On The Application Of Laws Concerning Foreign Tourism Disputes In China

At present,no scholars have comprehensively investigated the current application of laws in foreign-related tourism dispute cases and proposed a legal choice method that can solve the problems in practice.This paper adopts the method of empirical research to find out the legal problems in foreign-related tourism disputes for puting forward corresponding solutions.Chapter ? retrieves the judgment documents made by the court on foreign-related tourism cases from April 1,2011 to December 31,2019 by some databases,such as"China Judgements Online","PKULAW.COM" and "Wolters Kluwer".Through the retrieved result,this part describes the judicial practice of the application of laws in foreign tourism disputes.Chapter ? discusses how to deal with the conflict between the decision right of the parties and the court identification authority in contract and tort.When tour operators violate the safety-guard duty,tort liability and breach liability occurs.In these cases,tourists tend to identify "contract liability" rather than "tort liability" because of tourists'consideration of legal choice.At the same time,the plaintiff has completed the identification of liability in the process of filing the claim.In other words,the plaintiff is identification subject.Although the above practice is conducive to respect the disposition of the parties,the choice of the parties is usually irrational.Therefore,the judge is required to correct the results of identification.It is necessary not only to respect the choice of the parties,but also to give full play to the supplementary role of the court and prevent the abuse of the court's discretion.Chapter ? studies the issue-by-issue in foreign-related tourism cases.In the case of foreign tourism disputes,some points can be regarded as domestic cases.However,the applicable law is generally applied to all the points by courts after being identified as a foreign-related case.Therefore,the issue-by-issue should be applied in foreign-related tourism cases.Foreign-related points shall be governed by the applicable law,while domestic points shall be governed by the domestic law.Chapter ? focuses on the application of Article 42 of the Act of Application of Law to Foreign-related Civil Relations.Many courts have wrongly identified travel contract disputes as general contracts rather than consumer contracts.The reason is that the choice of general contract law is more flexible and the court has more autonomous power.Therefore,on the one hand,the doctrine of the most significant relationship and the principle of parties autonomy should be added to Article 42.On the other hand,it is necessary for the Supreme People's Court to issue guiding cases for demonstration and guidance.