旅游法规知识（Tourism law knowledge）

1、旅游法规知识（Tourism law knowledge）case indexFirst instance: the intermediate peoples Court of Hangzhou (2007), No. three of the peoples Court of the peoples Republic of China (No. 348th), civil judgment (May 20, 2008)Second instance: Zhejiang Higher Peoples Court (2008), Zhejiang Province, No. 200th, No.

2、 1 (September 25, 2008)casePlaintiff: Guan Boying and five othersDefendant: Hangzhou Tourism Distribution Center Co., Ltd. (referred to as Tourist Distribution Center)Defendant: Hangzhou Wushan Square Travel Service Co., Ltd. (referred to as Wu Shan square travel agency)Hangzhou City Intermediate Pe

3、oples court found that the case of the deceased que Bangwen was born in June 10, 1925. In July 10, 2006, Bangwen que for two day tour of Mount Huangshan to the Wushan Square travel agencies to pay travel expenses 398 yuan, Wushan Square travel agency issued invoice, issued by the tourism center call

4、ed Summer Special ticket 000 students tour two day tour of Mount Huangshan A, set clear date, place and bus travel number. In July 16th, the Board agreed Bangwen que Huanglong Sports Center Gymnasium on the train, scheduled to start the tour itinerary. At noon that day, que Bangwen line of tourists

5、26 people arrived in Mount Huangshan. Due to the typhoon Bilis influence, Mount Huangshan has not yet closed, but the funicular scenic area has been closed off, visitors can only walk on Mount Huangshan, 26 people, then led the tour guide que Bangwen at about 2 pm the same day from the cloud Valley

6、Temple started walking climbing. At 5 pm, in Mount Huangshan Bangwen que board to the white goose ridge (spots) to peacock pine (spots) between the stone road when suddenly fell to the ground, become unconscious. The tour guide immediately call alarm call for help, after a period of time, emergency

7、medical personnel were rushed to the scene to take rescue measures to Bangwen que, but died, the declaration of death. Subsequently, the Mount Huangshan Scenic Area Management Committee issued a death certificate authority clinic on the death of Bangwen que described as sudden death. In July 25th, B

8、angwen families to apply for forensic que que Bangwen remains a postmortem examination, but did not cause further examination.Que Bangwen wife Guan Boying and the children of five v.says, tourism center, Wushan Square travel agency is in default behavior, requesting the court to order the tourism ce

9、nter, Wushan Square travel agency for transport and accommodation costs 6000 yuan, $1055 yuan (equivalent to 8018 yuan), 13783.5 yuan of funeral expenses, compensation for death compensation 50 thousand yuan gold 289440 yuan and mental damage, a total of 367241.5 yuan.The tourism center argued that

10、Bangwen que death belongs to the accident, the tourism center should not bear civil liability. Guan Boying rejected the request for five.Wushan Square travel agency argued that there is no contractual relationship between it and the Bangwen que, only is the tourist center outlets, so it should not b

11、ear civil liability.judgmentHangzhou intermediate peoples court held that:(I) parties to the contract involved in the case. In the case of dispute over a contract travel service, the two parties to the contract party for Bangwen que no objection, the dispute is the other party to the contract is the

12、 tourist center and Wushan Square travel agency or just the tourism center. From the point of view of the facts of the case, the two day tour of Mount Huangshan advertising organizer for the tourist center, que Bangwen charge pay the travel costs 398 yuan and the formal invoice to the Wushan Square

13、travel agency, and to specify the date of travel, que Bangwen issued on location and special car ticket is tourism center. This shows that the tourism center and Wushan Square travel agencies have participated in this two day tour of Mount Huangshan, the organization of work and no evidence of the W

14、ushan Square travel agency is the tourism center of the outlets and the generation of. Therefore, in this case, the tourist collection center and the Wushan Square travel agency should act as the parties to the contract.(two) the cause of death on the Bangwen que. According to the doctors rescue dia

15、gnostic records at the time of the incident and the subsequent Mount Huangshan Scenic Area Management Committee issued a death certificate authority clinic, expressed the Bangwen que died because of sudden death, and record of investigation of Public Security Bureau of Mount Huangshan scenic area of

16、 the presence of personnel by the Bangwen was also reflected que suddenly fell to the ground is not caused by external forces. Guan Boying and five people died because of Bangwen claims Que killed but no evidence, and after the incident Bangwen Ques family has application remains on the forensic aut

17、opsy table que Bangwen test, but did not carry out further the pathological anatomy and death inspection, and can not determine Bangwen que is killed.(three) whether there is any breach of the travel agency and the travel agency of Wushan square. The travel company as a tourist service provider, acc

18、ording to the Peoples Republic of China consumer protection law article seventh, travel regulations provisions of article twenty-first, the provision of the services shall be consistent with the protection of the personal safety of the tourists to the requirements; possibly endangers the personal sa

19、fety of the tourists matters, shall make a true statement and clear warning, and take measures to prevent damage. Accordingly,To protect the personal safety of tourists, informing, warning and other obligations become the statutory collateral obligations of the Travel Company. In this case the touri

20、sm center and Wushan Square travel agency that Bangwen que is over eighty of the elderly, in the harsh climatic conditions of the typhoon falls, the organization in mountaineering and tourism activities, more consideration should be given to their physiological and psychological characteristics, to

21、take a more thoughtful and meticulous service measures to prevent damage, but no the evidence that the law strictly fulfill the collateral obligation, there are certain causal relationship and the consequences of the death of Bangwen que, shall bear the liability for breach of contract by the touris

22、t center and Wushan Square travel agency.(four) the liability for the travel agency and the travel agency of Wushan Square and the determination of the loss scope in this case. In this case the accident is mainly caused by their own physical reasons Bangwen que. Although the tourism center and Wusha

23、n Square travel agency in violation of contractual collateral obligation, but not is a major cause of losses in this case, the Bangwen que himself and his family as a full civil capacity of people, is that for their own age, physical condition, to participate in tourism projects etc., and of his own

24、 ability and adaptability should have the judgment, and take appropriate measures to prevent the loss of the generation and expansion. Therefore, in this case, Guan Boying and other five people should bear the main losses themselves, as appropriate, determine the travel centers and Wushan Square tra

25、vel agency to assume the responsibility of compensation for the loss of 20%.In this case Guan Boying five claims caused by the death of Bangwen Que in the loss of traffic accommodation costs 6000 yuan, $1055 yuan (equivalent to 8018 yuan), 13783.5 yuan of funeral expenses, tourism center and Wushan

26、Square travel agency has no objection to the actual expenditure, can be found. For Guan Boying and other five claims compensation for death, because the case is the tourism service contract dispute, which belongs to the consumer contract, so the requirements applicable as the special law of the Peop

27、les Republic of China consumer protection law and the reference to Zhejiang province implementation of the Peoples Republic of China consumer protection law means to calculate the specific provisions of compensation for death a can be adopted, 20 times the 2006 urban residents annual statistics, acc

28、ording to the Hangzhou Municipal Bureau announced the per capita consumption expenditure amounted to 14472 yuan to 289440 yuan. As for the compensation for mental damage caused by Guan Boying and other five people, as the case mentioned in this case is not a tort action, the claim for compensation i

29、s not supported on the basis of insufficient compensation. In summary, que Bangwen death caused by the loss of the total amount of 317241.5 yuan, the tourist center and Wushan Square travel agency to undertake 20% or 63448.3 yuan. Judgment accordingly:First, the tourism distribution center, Wu Shan

30、Plaza travel agency compensation Guan Boying and other five people lost 63448.3 yuan, ten days after the decision was completed;Two, dismissed Guan Boying and other five other litigation claims.Guan Boying and other five people refused to appeal.The higher peoples Court of Zhejiang province held tha

31、t:(I) on the causes of death. According to the facts of the case, forensic examination of the body surface, although que Bangwen abrasions or trauma marks, but it does not exclude the possibility of other causes; in the absence of other relevant evidence of evidence, only the dead body surface scrat

32、ches or traces of trauma is still unable to make Bangwen Que killed conclusion. Moreover, Guan Boying five also believes in the complaint, que Bangwen body parts abrasions and wounds, only that it is killed, but is not exactly killed. The tourist center, Wushan Square travel claims department Bangwe

33、n Que sudden death basis is not sufficient. First of all, the rescue assistant physician Liu Jian que Bangwen records only a preliminary diagnosis in the outpatient medical records made in death, therefore, the final conclusion is the lack of diagnosis of causes of death. Secondly, the Mount Huangsh

34、an Scenic Zone Authority clinic on the day of the incident issued medical certificate of death is recorded Bangwen que Department sudden death , but there is no corresponding pathological analysis of comments and other evidence to prove the conclusion. Again, after the death, should Bangwen que fami

35、lys request, and does not sudden death conclusion table inspection report on Bangwen que made by the Public Security Bureau in Mount Huangshan scenic area in July 25, 2006. The court of first instance made a que Bangwen Department of sudden death found that the lack of factual basis.(two) the questi

36、on of causation. The Peoples Republic of China consumer protection law and travel regulations and other laws and administrative regulations stipulate the tourism operators and organizers should undertake to ensure the safety of person and property in tourists to provide travel services in the proces

37、s of responsibility, tourism center and Wushan Square when the travel agency should abide by the executive. From the point of view of the facts of the case, the day of the incident, there are many factors to endanger the personal safety of tourists: due to the impact of the typhoon Bilis, Mount Huan

38、gshan scenic area Its raining and blowing hard,In this case Bangwen que heir to the choice of the breach of the complaint filed, tourism company for damages for breach of contract in accordance with the law.Breach of contract and cause and effect relationship constitute the elements of damages for b

39、reach of contract. Travel contract as a special consumer service contract, the personal safety of tourists and service should be the most basic quality standards belong to the tourism activities that is the provider of travel company, who agreed to protect tourists safety is reasonable, is also in l

40、ine with the trading habits, legal obligations in China is also defined by law for the travel company. From the point of view of the facts of the case, the accident occurred on the same day Mount Huangshan scenic area due to typhoon Bilis, climate anomaly is bad, in this case, the travel company sho

41、uld be clearly informed and alert, formulate emergency plan and measures carefully, to protect against accidents. Especially in the case of the deceased que Bangwen is a 81 year old elderly, travel company as operators to provide paid services, agreed to the s tourism, in consultation with the volun

42、tary establishment of legal relationship of tourism service contract, which means it has voluntarily accepted and therefore may bring greater risk responsibility, its responsibilities should be unified. Therefore, it should be combined with the physiological and psychological characteristics of Bang

43、wen que, formulate and adopt a more thoughtful and meticulous service and preventive and emergency measures. However, there is no evidence that the travel company has implemented a clear notification and warning obligation, and has taken preventive measures against it. Therefore, should think that t

44、ourism companies exist because of careless negligence and perform do not conform to the legal provisions of the act, which already constitutes a breach of contract, being quite a causal relationship between the breach and the death of Bangwen que que Bangwen results, according to the law to deal wit

45、h the consequences of the death of the liability for damages.According to Chinas contract law article 107th and article 113rd of the regulations, the establishment of China s Contract Law Imputation principle is the principle of strict liability, the scope of compensation is the principle of full co

46、mpensation. However, the principle of strict liability and the principle of full compensation are not in the determination of the liability of breach of contract by the defaulting party, without considering any other factors, and compensate for the loss of the victim in full. In fact, in order to pr

47、otect the interests of both parties of the contract fairness, reduce transaction risk, encourage the parties engaged in trading activities, improve efficiency, in determining the compensation liability for breach of the damage, an important rule to consider is the rule of contributory negligence, the victim in the loss or expand the occurrence of a fault, the liability for compensation you can reduce or avoid the default. In the case of both sides of the contract are in fault, according to the degree of fault of the two sides to determine the res