旅游合同解除制度的体系性解释

《旅游法》中的旅游合同解除制度,须结合《合同法》上的解除制度进行体系性解释。旅游合同的一般法定解除权应包括《合同法》第94条的规定。《旅游法》第67条的"不可避免事件",存在解释的空间。《旅游法》虽未明确旅游者的任意解除权,但无论是从合同性质路径还是合同具体内容导出合同义务路径,《旅游法》第65条都应被解释为旅游者任意解除权的依据。而旅游经营者的法定解除权,应秉持立法宗旨及旅游特性,对传染病、危害公共安全的物品、社会公德、违法活动等用语进行限定解释。在旅游合同解除效果上,应考虑到未履行部分费用、返程费用、履行利益及时间浪费赔偿的特殊性。

The Systematic Interpretation on the Dissolution of Tour Contracts

As a comprehensive law, on October I, 2013, the Chinese Tourism Law became official. There is an urgent necessity to comprehend correctly the system of dissolution, as a measure to balance the interests of two parties. A Tour Contract is one type of contract, so the dissolution of it in Tourism Law should be interpreted systematically with the system of dissolution in Chinese Contract Law. The general statutory dissolution of a tour contract should contain the provision of the Article 94 of Contract Law, and the special statutory dissolution should be understood on the basis of the specific provisions of Tourism Law. For the comprehension of the special statutory dissolution of tour contract, there are several concerns which this paper discusses. The Article 67 of Tourism Law has provided travelers the fight of dissolution under force majeure and inevitable events, but it has not defined the right of dissolution unconditionally while other countries and regions grant it. Although the judicial practice has never approved it before, the Article 65 of Tourism Law should be interpreted that travelers have the right of dissolution in any situation considering the nature of the contract or the specific content of the contract. Furthermore, when we interpret the tour businessmen＇ statutory dissolution, we should uphold the legislative purpose of Tourism Law and the travel features. Other than the well- recognized one that tour operators can terminate the contract when the number of travelers does not reach the number that the contract states, there are still several factors that we need to pay special attention to. For example, we should consider the ＂infectious diseases＂ in combination with the Law of the People＇s Republic of China on the Prevention and Treatment of Infection Diseases that the tour businessmen can just change the contract instead of dissolution if travelers fall ill at the beginning of their travel. We also need to consider other conditions such as carrying dangerous goods that are against public safety according to relevant laws and regulations, violating public morality leading to serious consequences and performing illegal activities according Chinese laws in foreign countries. In the end, when we talk about the legal effect of tour contract dissolution, we should take the same understanding of the unfulfilled cost in different Articles. The return fee is the silent cost generally assumed by travelers, while the time wasting compensation should be given in order to make up for the mental damage compensation loss for travelers when breaching the contracts. Travelers when exercising the fight of dissolution unconditionally, the performance interest should be compensated with consideration of the law system and the extra-territorial legislation. The application of Tourism Law is just at the initial period, and faces an uncertain future. When we comprehend the dissolution of tour contracts, we should especially take notice of its relationship with Contract Law and the tour features themselves.