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May 2007, Volume 4, No.5 (Serial No.30) US-China Law Review; ISSN1548-6605,USA
May 2007, Volume 4, No.5 (Serial No.30) US-China Law Review 1SSN1548-6605,USA

Research on contractual obligations of package

tour business people in China

ZHAOLi-minl, WEIMin 2
(1. Zhongshan Polytechnic, Zhongshan 528437, China; 2. Management School ofXiamen University Xiamen 361005, China)

Abstract: The statistics show that in recent years, the achievement of China's tourism business has reached a
highest record. Compared with the rapid development of tourism, the research on travel contract started later in
China. The study gradually began to increase with the development of tourism after entering the 21st century.
Through this essay, the author tries to do some analysis on the content of package travel contract, contract subject
and the main contract responsibility of package tour business people, and note the shortcomings of research and
development trends.
Key words: package travel contract tour business people; tour business auxiliary; contractual obligations

1. Introduction

The Statistics of China National Bureau shows that in recent years, the number of international tourists, the
income from foreign exchange, the number of domestic tourists, domestic tourism revenue, international and
domestic tourism income and the number of outbound Chinese tourists have all broken a record. Contrasting to
the rapid development of tourism, the study on the contract lagged behind. Owing to the development of tourism,
after entering the 21st century, such research gradually increased. So far, there is not a tourism law in China.
Because of this reason, the author tries to do some analysis on the main contract responsibility of China package
tour business people.

2. Literature review

Since the 1990s, more and more academic circles have made some explanations on contract responsibility of
package tour business people. Generally it can be divided into three stages: (1) the initial stage (1998-2001). At
this stage, researchers drew on reference to the Taiwan province of China and foreign research results in various
degrees. The research focused on the responsibility of tour business auxiliary. The main researchers are ZHANG
Song, SONG Hui-yong (1998), LIU Gui-qin (2000), CAO Zhi-guo, YU Hong-lei, DU Jun (2001), etc. (2) the
development stage (2002-2003). At this stage, researchers systematically and comprehensively approached the
contractual obligations of tour business people including the responsibility to travel services direct providers
(implementing auxiliary), blemish assured responsibility, liabilities for breach and tort liability etc. Researchers
conducted a special analysis on some of the specific issues involved in the package tours contract. The principal
researchers are NING Hong-li, ZHANG You-lian (2002), LIU Lu, FU Xin-xin, HE Ya-lan, LIU Jin-liu (2003), etc.

ZHAO Li-min (1965-), male, associate professor ofZhongshan Polytechnic; research field: traveling regulations.
WEI Min (1975- ). male, Ph.D. of economics, lecturer of Management School of Xiamen University; tesearch field: traveling
regulations.

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 Research on contractual obligations of package tour business people in China

(3) enhancing the development stage (2004 to present). At this stage, the study uninly concentrates in the
discussion about some difficult problems of the contract responsibility of package tour business people, including
mental damages, a third infringement, breach of contract responsibilities and so on. Researchers include mainly
LIU Gan-shang, LI Zhi-xuan (2004), LEI Chun-gong, GONG Tao, ZHANG Yi, WANG Bao-shun, GAO
Sheng-ping (2005, 2006), etc. There is still not a tourism law in China. There is also some relevant provisions of
the travel contract in the General Principles of Civil Code and Contract Law in China. Therefore, on the basis of
the review of the literature, summing up China's some specific practices in practice and learning from foreign
experience, the article intends to clearly define the content of China's package travel contract and contract subject,
and the contract responsibility of package tour business people, hoping to provide a useful reference for China's
tourism economic legislation in the future.

3. The content of package tours contract and contract subject

Travel contract is divided into two parts from the point of a broad sense and narrow sense. In narrow sense,
travel contract is the one that passenger delivery the costs, travel agents provide travel services (General
Principles of Civil Law of People's Republic of China [indoor draft] Contract Article, in September 2002 draft). In
broad sense, travel contract is the agreement that parties to travel contract who have equal civil entities eligible
clear both rights and obligations for tourist purposes. In addition to a narrow content, the broad travel contract also
includes the contract between travel agents and other travel service providers. In addition, In accordance with the
broad concept, all contracts between tourists and tourism business units or individuals in the process of signing the
contract should belong to travel contract. Although broad travel contract legislation could regulate a variety of
contracts that are closely linked to travel contract, it would help to protect the legitimate rights and interests of
tourists. However, such travel contract legislation will undoubtedly involve too, but with the continued
development of tourism, there will be a tendency to spread, and not reflect the inherent nature of the tourism and
travel contract. Moreover, these contracts may be replaced by other typical contracts, such as contracts for food
and accommodation, transport contracts, insurance contracts, and so on. Therefore, majority of scholars define and
study tourism contract from a narrow angle. On this basis, they have gradually distinguished package travel and
intermediary travel, and formed a concept of package tour contract.
In Chinese academia, the research of package tours contract subject focused on the party to provide travel
services. In fact, it should include three groups of people, namely, tour business people (mainly referring to travel
agent), tour business auxiliary and tourist. In China, travel organizers generally refer to the travel agent to obtain a
qualified travel agent business according to the relevant provisions of China "Travel Agency Regulations".
However, travel organizers are not limited to corporation or administrative qualification gainer. Units and
individuals without travel agency license run travel agent business, as long as their products meet the
characteristics of package travel, it does not affect their legal status as a party to package travel contract. In terms
of China "Travel Agency Regulations", travel agent must have corporate qualification, register in accordance with
the regulations and have a travel constitution, which is not conducive to the sustainable development of China
tourism. With the development of society, the new business subject may emerge in the future, "travel agent" will
be unable to cover, and consequently, definition of tour business people will be more reasonable. Tour business
people are the economic organizations engaged in tourism business for profit.

4. The primary contract responsibility of package tour business people

 Research on contractual obligations of package tour business people in China

Contractual liability belongs to the fundamental aspects of the very broad civil law. It is a civil liability that
equal civil entities should bear because of violation of a statutory or agreed contractual obligations and damaging
the interests of the creditor. The contractual liability of tour business people should include two aspects: First, tour
business people violate statutory or agreed contractual obligations, resulting in defects performance,
non-performance, non-fully-performance or performance delay. Because of damage to the interests of creditors,
tour business people should be responsible for civil liability, specific manifestations blemish assured
responsibility and default liability of tour business people; Second, tour business people should be in charge of the
responsibility of the third party.
4.1 Blemish assured responsibility of tour business people
ZHANG Song and SONG Hui-yong earlier referred to blemish assured responsibility of tour business people
with 'journey guarantees" concept. Later, HE Ya-lan, LIU Lu, LIU Jin-liu, GONG Tao and other scholars have
discussed blemish assured responsibility of tour business people.
Travel flaws refer to the subjective and specific flaws that deviate from the agreed nature in the course of
tourism. All of the reasons for non-tourists result in the whole or individual barriers to the provision of travel
services, which both belong to travel flaws. In package tour contract, blemish assured responsibility refers to "the
travel services provided by tour business people who should have the usual value and the agreed quality, that is to
say, tour business people must assume responsibility for the value or quality of services down caused by
performance flaws". Article 262 of China "Contract Law" has provided for undertaker's blemish assured
responsibility. Due to the undertaking nature of travel contract, tour business people should also be responsible for
blemish assured responsibility to provide travel services for tourists. That is, the quality of travel services should
reach an agreement. Such blemish assured responsibility is more akin in nature to flaws assurance in the material,
rather than the right to flaws assurance.
4.2 Default liability of tour business people
Default liability of tour business people caused by non-compliance contractual obligations and improper
performance of the contract obligations. Non-compliance contractual obligations include being unable to perform,
refusing to perform or improper performance which can be divided into delay implementation and
non-fully- implementation. Non-fully- implementation is divided into defective services supply and harmful
services supply, namely, travel service defects.
Tour business people violation mainly refers to the change in the contractwhich includes two aspects: First,
the contract main changes in package travel contract (such as transfer of the contract and reassembly tourism
mission); Second, the content of package travel contract changes. The characteristics of tourism activities decide
that lour business people can change the contents of the contract, but the reason can not be attributed to tour
business people and objective reasons. Otherwise, tour business people must assume default liability. However,
even this objective causes changes in travel contrac1 we have to judge whether these objective reasons is
sufficient to lead to changes in travel contract. For example, with the exchange rate adjustment or change in the
cost of transport, whether travel agencies are able to increase the one-time payment of the agreed fees. From the
material losses perspective, the actual loss of tourists likely to be minimal, and from the point of view of spiritual
compensation, in accordance with China's existing laws and judicial interpretations, such disputes have not been
included in the scope of spiritual compensation. Because of a lack of legal basis, the tourist is difficult to achieve
their goal in practice.
4.3 Accountability to the third-party liability

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 Research on contractual obligations of package tour business people in China

The third person refers to a natural person, legal or illegal organization, which does not include the parties to
travel contract In accordance with the contractual relationship between the third person and tour business people,
the third person can be divided into two categories: Firstly, the third person, which has a tourist reception
contractual relationship with tour business people, namely, tour business auxiliary. It mainly refers to, in the
course of travel contract performancq enterprises which support tour business people to fulfill contractual
obligations in a particular area, including transportation enterprises, and the catering accommodation and
entertainment enterprises, tourism resource management enterprises, and so on. Due to the diversity of travel
services, a considerable amount of travel services are provided by tour business auxiliary in package iravel
contract. In the contract performance process, the phenomenon which involved the third person is widespread.
Therefore, travel damage may be caused either by tour business people or tour business auxiliary. Secondly, the
third person has no tourist reception contractual relationship with tour business people.
As to duty-bearers of contract default or tort on tour business auxiliary, under normal circumstances, tourists
can call for the right to tour business people in accordance with the contract agreement. After a civil
accountability to tourists, tour business people can further recover compensation to travel auxiliary enterprises; If
some of the contractual relationship was established between the tourists and travel auxiliary enterprises, at this
point, according to China "Contract Law" or "Consumer Protection Law", corresponding legal and contractual
requirements, tourists can also directly exercise their claims to travel aixiliary enterprises. Therefore, in such
cases, tourists enjoy the right to choose to be the liability bearers for compensation. In travel contract, the legal
nature of tour business auxiliary directly determines the scope of responsibility of tour business people. It is more
conducive to the protection of tourist interests than to be identified as a implemental accountability (internal
accountability) that this situation, which the services are provided by the third person in travel contract, is
identified as contract benefiting the others.
As to the imputation principle, in package tour contract travel services direct provider appeared as the
implementing auxiliary of tour business people. For the deliberate or negligent of travel services direct providers,
tour business people should take the same responsibility as their own intent or negligence. In tour business people
responsibilities, the most critical problem is that whether the court should instruct tour business people to assume
responsibility without fault. It is undoubtedly of great significance to implement blemish assured system in
package travel contract which provides a way for tour business people to bear the third-party liability.
4.4 The exemption of the liability of tour business people and the limitation of liability
In strict liability system, the Force Majeure is a direct statutory exemption clauses, any other reason shall not
defense unless the other sides forgo their rights. Specific exemption matters can be summarized into two
categories in travel contract: Natural events of Force Majeure and uncontrollable human factors. Tour business
people can use natural events of Force Majeure (such as encountered floods, earthquakes, etc. in the course of
tourism) as a reason to absolve themselves of responsibility. However, tour business people should immediately
notify the tourists in an appropriate manner. For failure to notify resulting any loss of tourists, tour business people
should bear compensation liability for damages; with uncontrollable human factors including political instability,
turbulence and even rebellion in a tourist destination, travel service direct providers strike and no other service
providers can be alternative or substitute, and the traffic congestion can not be attributed to tour business people
and some unavoidable subjects. From the above reasons, the travel content of the original agreement is difficult to
fulfill, according to actual needs, to safeguard the security and interests of tour group. Tour business people can
take part of the journey of change and replacement of the same hotel as a stop-gap measure, while tourists can not

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 Research on contractual obligations of package tour business people in China

oppose. Among them, more than original itinerary costs should be borne by tourists. The two parties may agree on
the Force Majeure and accidents in travel contract. The reasons are as follows: First, it is very clear in law that in
case of Force Majeure, of course, tour business people do not have to take responsibility. However, the use of
Force Majeure is difficult to define in the course of travel. About whether infectious disease is the Force Majeure,
most of the countries have different views. The problem can be completely specified in travel contract. From
contract's equitable principles, both sides can agree in the contract that, once this situation happens, what
responsibility all parties should bear.

5. Conclusion

First, Nearly 10 years of academic research results provide a good foundation for the contractual liability
study of China package tour business people, which haven't enough to draw the study's results of civil law in
other areas. Second, combining package tours contract research with some basic theoretical study will improve the
existing research results. Such as the contract responsibility system study on the parties to package tours contract,
responsibilities and obligations corresponding study, the atribution and identification study on default liability
(fundamental and non-fundamental breach), etc. Third, legislative study on travel contract should become one of
the focuses on travel contracts. From either the need to guide practice or standardizing some basic concepts of the
theoretical study, travel contract legislation is imminent. Practice eventually needs theory guide; academic
research can be a good theory platform for the tourism contract legislative. Fourth, it is an effective way to raise
the research level through enhancing the tourism industry to participate in the study, promoting theoretical
research personnel to practice more and drawing more foreign research results, legislative and judicial practice.
Researchers are either university teachers or graduate students in reading, research personnel monotonous.

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(Edited by Hiller)

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