旅游合同及其规制
发布时间：2018-08-22 10:55
【摘要】：随着我国经济的快速发展和人民生活水平的不断提高,旅游成为人们释放压力、休闲娱乐的主要方式,旅游人数逐年上升,法院受理的旅游纠纷案件逐年增多,审判实践中旅游纠纷案件出现了很多法律适用的难点和热点。而与旅游业的发展趋势相比,旅游立法相对滞后。《合同法》未对旅游合同加以规定,司法实践中裁判也不统一。最高人民法院于2010年10月公布了关于审理旅游纠纷案件的司法解释,这个司法解释对于旅游合同中的很多内容进行了明确的规定。笔者认为,司法解释的出台为旅游合同的研究提供了新的理论依据。值此之际,我们更应该不断深入对旅游合同的研究,以解决日益增多的旅游合同纠纷问题。 本文主要通过比较研究和实证研究的方法,对国内外旅游合同的立法实践和我国现存的问题进行了研究,并提出了自己对于旅游合同规制的建议。 除去引言和结语本文共分四章： 第一章是旅游合同的概述,共分三节。第一节是旅游合同的概念,首先通过介绍、分析理论和立法上的各种观点,认为旅游合同是旅游经营者向旅游者提供整体性旅游服务,旅游者支付旅游费用的合同。第二节是旅游合同的特征,分析了旅游合同具有一方主体特定性、内容复杂性、绝对定期性、格式化等法律特征。第三节是旅游合同的性质,在评析各种学说的基础上,笔者认为旅游合同是兼具数种典型合同特征,其特殊性已足以使其成为一种全新的合同类型。 第二章是旅游合同规制的比较法考察,共分三节。主要对大陆法系国家关于旅游合同的相关法律制度进行考察,分别考察了布鲁塞尔《旅行契约国际公约》、德国民法典中关于旅游合同的规定和日本标准旅行行业约款的内容。笔者试图通过对域外旅游合同的考察,来借鉴对于我国旅游合同研究有价值的地方。 第三章是旅游合同在实践中存在的问题,共分两节。笔者以《浙江省国内旅游合同范文本)》为例,通过实证分析,着重叙述我国现行合同文本中对于旅游者不利的一些条款。最后通过和《团队国内旅游合同(示范文本)》的对比,提出了对现行合同文本的改进建议。 第四章是我国旅游合同规制的现状与完善,共分两节。第一节主要讲述我国旅游合同规制的发展过程和现实情况。第二节是完善我国旅游合同规制的思考,通过对旅游格式条款的规制和旅游合同有名化两种途径来解决我国现实存在的旅游合同问题。 旅游合同对于旅游活动的顺利进行是至关重要的,亟需将其有名化,并建立符合旅游合同特征的相应制度。本文旨在通过对旅游合同现存问题和规制方法的研究,以期能对构建和完善我国的旅游合同立法尽自己的一点绵薄之力。
[Abstract]:With the rapid development of our economy and the continuous improvement of people's living standard, tourism has become the main way for people to release pressure, leisure and entertainment, the number of tourists has increased year by year, and the cases of tourism disputes accepted by the courts have increased year by year. There are many difficulties and hot spots in the application of law in tourism dispute cases in trial practice. Compared with the development trend of tourism, the tourism legislation is relatively lagging behind. The contract Law does not provide for the tourism contract, and the judicial practice is not unified. In October 2010, the Supreme people's Court published a judicial interpretation on the trial of tourism disputes, which clearly stipulates many aspects of tourism contracts. The author believes that the introduction of judicial interpretation provides a new theoretical basis for the study of tourism contracts. At this time, we should go deep into the study of tourism contract in order to solve the increasing dispute of tourism contract. This article mainly through the comparative research and the demonstration research method, has carried on the research to the domestic and foreign travel contract legislation practice and our country extant question, and has put forward own suggestions for the tourism contract regulation. Apart from the introduction and conclusion, this paper is divided into four chapters: the first chapter is an overview of tourism contracts, a total of three sections. The first section is the concept of tourism contract. Firstly, through introduction, analysis of various viewpoints in theory and legislation, it is concluded that tourism contract is a contract for tour operators to provide holistic tourism services to tourists and tourists to pay for tourism costs. The second section is the characteristics of tourism contract. It analyzes the legal characteristics of tourism contract, such as the specific nature of one party, complexity of content, absolute periodicity, formatting and so on. The third section is the nature of tourism contract. On the basis of analyzing various theories, the author thinks that tourism contract has several typical characteristics, and its particularity is enough to make it a new type of contract. The second chapter is the comparative study of tourism contract regulation, which is divided into three sections. This paper mainly studies the relevant legal system of tourism contract in the countries of civil law system, including the International Convention on Travel contract in Brussels, the provisions of the German Civil Code on tourism contract and the contents of Japanese standard travel trade agreement. The author tries to draw lessons from the study of foreign tourism contracts in China. The third chapter is the tourism contract in practice problems, a total of two sections. Taking the Model text of domestic Tourism contract in Zhejiang Province as an example, through empirical analysis, the author emphatically describes some clauses in the current contract text of our country that are disadvantageous to tourists. Finally, by comparing with "team domestic Tourism contract (Model text)", the paper puts forward some suggestions to improve the current contract text. The fourth chapter is the current situation and perfection of tourism contract regulation in China, which is divided into two sections. The first section mainly describes the development process and reality of tourism contract regulation in China. The second section is to improve the regulation of tourism contracts in China, through the regulation of tourism format terms and tourism contract naming two ways to solve the reality of tourism contracts in China. Tourism contract is of great importance to the smooth progress of tourism activities. It is urgent to make it famous and to establish a corresponding system which accords with the characteristics of tourism contract. The purpose of this paper is to study the existing problems and regulation methods of tourism contract in order to make a little effort to construct and perfect the legislation of tourism contract in our country.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
本文编号：2196881
[Abstract]:With the rapid development of our economy and the continuous improvement of people's living standard, tourism has become the main way for people to release pressure, leisure and entertainment, the number of tourists has increased year by year, and the cases of tourism disputes accepted by the courts have increased year by year. There are many difficulties and hot spots in the application of law in tourism dispute cases in trial practice. Compared with the development trend of tourism, the tourism legislation is relatively lagging behind. The contract Law does not provide for the tourism contract, and the judicial practice is not unified. In October 2010, the Supreme people's Court published a judicial interpretation on the trial of tourism disputes, which clearly stipulates many aspects of tourism contracts. The author believes that the introduction of judicial interpretation provides a new theoretical basis for the study of tourism contracts. At this time, we should go deep into the study of tourism contract in order to solve the increasing dispute of tourism contract. This article mainly through the comparative research and the demonstration research method, has carried on the research to the domestic and foreign travel contract legislation practice and our country extant question, and has put forward own suggestions for the tourism contract regulation. Apart from the introduction and conclusion, this paper is divided into four chapters: the first chapter is an overview of tourism contracts, a total of three sections. The first section is the concept of tourism contract. Firstly, through introduction, analysis of various viewpoints in theory and legislation, it is concluded that tourism contract is a contract for tour operators to provide holistic tourism services to tourists and tourists to pay for tourism costs. The second section is the characteristics of tourism contract. It analyzes the legal characteristics of tourism contract, such as the specific nature of one party, complexity of content, absolute periodicity, formatting and so on. The third section is the nature of tourism contract. On the basis of analyzing various theories, the author thinks that tourism contract has several typical characteristics, and its particularity is enough to make it a new type of contract. The second chapter is the comparative study of tourism contract regulation, which is divided into three sections. This paper mainly studies the relevant legal system of tourism contract in the countries of civil law system, including the International Convention on Travel contract in Brussels, the provisions of the German Civil Code on tourism contract and the contents of Japanese standard travel trade agreement. The author tries to draw lessons from the study of foreign tourism contracts in China. The third chapter is the tourism contract in practice problems, a total of two sections. Taking the Model text of domestic Tourism contract in Zhejiang Province as an example, through empirical analysis, the author emphatically describes some clauses in the current contract text of our country that are disadvantageous to tourists. Finally, by comparing with "team domestic Tourism contract (Model text)", the paper puts forward some suggestions to improve the current contract text. The fourth chapter is the current situation and perfection of tourism contract regulation in China, which is divided into two sections. The first section mainly describes the development process and reality of tourism contract regulation in China. The second section is to improve the regulation of tourism contracts in China, through the regulation of tourism format terms and tourism contract naming two ways to solve the reality of tourism contracts in China. Tourism contract is of great importance to the smooth progress of tourism activities. It is urgent to make it famous and to establish a corresponding system which accords with the characteristics of tourism contract. The purpose of this paper is to study the existing problems and regulation methods of tourism contract in order to make a little effort to construct and perfect the legislation of tourism contract in our country.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
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