旅游吸引物权不可统一立法之辨析

旅游吸引物在旅游学上属于一个集合概念, 在法律上没有相关规定, 但不同属性的旅游吸引物作为个体在《物权法》上的权属性质往往是有法可循的。文章运用物权法理论, 结合新颁布的《旅游法》, 分析几个典型旅游吸引物的权属, 试图澄清几个与此相关的问题, 论证设立旅游吸引物权、为之统一立法的不合理性和不可行性, 并进一步提出充分运用《合同法》、《旅游法》以及相关法律解释等现有法律规定, 解决农村土地旅游开发中社区权益保护问题, 而不是简单地采取修改法律的方式解决此类问题。

Analyses on Tourist Attractions Rights Can Not Being Legislated

The essay is based on the journal article, Legislating for Tourist Attractions Rights by professor Bao Jigang and professor Zuo Bing, who advocate to introduce legislation for tourism attractions or to amend the Property Law as solutions to the conflicts between developers and rural communities on how to equitably distribute tourism revenues generated by tourist attractions. It is undeniable that tourist attractions which can not be divided from rural land and tourism revenues have caused serious conflicts between developers and rural communities, but it is not feasible to legislate for a Tourist Attraction Property Right （TAPR） which is made up of thousands of various matters as an independent individual in law. Regarded as an aggregate concept in tourist research, a tourist attraction is a professional term from tourism science that has not been ruled by law. But different properties of tourism attractions, such as individuals, are protected by Property Law, among which some tourist attractions are being listed in the existing categories of rights in the Property Law in China. So legislating for tourism attraction to some extent, will definitely waste judicial resources. This essay analyses property rights of some typical tourist attractions such as tourist facilities, transportation facilities, tourist resources and soon as well as clarifying some related issues of tourism attraction property rights put forward by professor Bao. It also shows in detail why legislating for tourism attractions as an aggregation is irrational and infeasible in law by theory of Property Law as well as Tourism Law. The best way to solve the conflicts caused by tourist attractions and its benefits is to guarantee a fair, equitable and executable contract between developers and communities. It is urgent to help communities improve their legal knowledge for protecting their rights instead of instead of resorting to violence or destroying the environment. In addition, the essay suggests making full use of Contract Law, Tourism Law related existing laws and judicial explanations to solve the problems of community rights protection in rural tourism development and the conflicts of tourism income distribution among communities, developers and governments, instead of simply amending laws.