Complaints from tour leaders

Legal subjectivity:

First, who should the travel agency complain about the breach of contract?

If the travel agency breaches the contract, consumers can deal with it in the following ways:

(1) Negotiating and settling with tour operators. If a tourist encounters a travel dispute during the trip, he can first communicate with the full escort, tour leader or tour guide of the tour group agency. If it cannot be solved, he should contact the tour group agency again and ask for proper handling. We should reflect our opinions and suggestions to them in time, and then make a decision after listening to the reply from the travel agency.

(two) request the consumer association for mediation. The Tourism Law stipulates that consumers' associations, tourist complaint handling institutions and relevant mediation organizations shall mediate disputes between tourists and tour operators according to law on the basis of mutual willingness. When consumers fail to negotiate with tour operators, they can mediate with tour companies through consumer associations and other institutions. However, mediation must abide by the principles of voluntariness and legality.

1. The principle of voluntariness includes two aspects: First, mediation work must be carried out on the voluntary basis of both parties; Second, the content of the mediation agreement must be voluntary.

2. The legal principle of mediation mainly means that mediation work should be based on facts, and on the basis of distinguishing right from wrong, the substantive law should be correctly applied to determine the rights and obligations of both parties. The content of mediation agreement should not conflict with the prohibitive provisions in civil law, and should not infringe on national interests and social public interests, or violate public order and good customs or damage the legitimate rights and interests of a third party.

Second, how to determine the liability for breach of contract in the contract

Breach of contract refers to non-performance, improper performance and delayed performance of contract obligations. There are three main reasons for non-performance: the parties' weak legal awareness, limited cultural knowledge, insufficient attention to the main terms, and the lenient contract enforcement objectively condone the occurrence of breach of contract. Breach of the contract is detrimental to the seriousness of the contract, the security of the transaction, the reputation and image of the enterprise, and the loss of the international market, which is not conducive to foreign exchanges and cooperation. After China's entry into WTO, it is necessary to strengthen the enforcement of contract dispute cases. In the trial, the following issues should be clarified:

(A) the composition of the liability for breach of contract and the principle of attribution

The principle of fault liability refers to the liability for breach of contract, which can only be assumed if the breaching party is at fault.

Although the breaching party has the fact of breach of contract, but it has no intentional or negligent fault in breach of contract, it will not be liable for breach of contract. Although the fault liability has certain rationality, it also has disadvantages, which increases the difficulty for the observant party to give evidence and the difficulty for the court to determine the facts. It is very arbitrary to apply it. Because of the disputes arising from breach of contract, it is difficult to have an accurate quantitative standard for the degree of breach of contract. In fact, the division of fault size by the defaulting party brings great arbitrariness to the subjective determination of judges, and it cannot be ruled out that human relations have a fault.

(2) No-fault principle

According to Article 577 of the Civil Code, in the civil trial of contract cases by the court, as long as the fact that the parties did not perform the contract is ascertained and the external reasons of force majeure are excluded, the parties' breach of contract can be established, and there is no need for repeated proof. It is a major reform of the civil code system from the fault principle to the no-fault principle.

Third, how to deal with the breach of contract

(1) Unilateral breach of contract

According to the relevant provisions of the Civil Code, the so-called anticipatory breach of contract, called early breach of contract, refers to the behavior that one party indicates that it will not perform the contract in an express or implied way before the contract performance period comes. The essence of anticipatory breach of contract is a kind of breach of contract, which can be divided into express breach of contract and implied breach of contract. The so-called express breach of contract means that one party clearly and definitely indicates to the other party that it will not perform its contractual obligations before the contract performance comes. Breach of contract broadcasting can be written or oral. The so-called implied breach of contract means that the parties predict that they will not perform their contractual obligations according to the behavior of the other party before the contract performance period comes. Its constitutive conditions are: 1. The debtor's behavior conforms to the provisions of the Civil Code; 2. The observant party has conclusive evidence to prove that the other party has the above situation; 3. The breaching party is unwilling to provide appropriate performance guarantee. For anticipatory breach of contract, the observant party shall choose the following remedies according to law to pursue the legal responsibility of the other party:

(2) Self-help means

According to the relevant provisions of the Civil Code, the observant party has the right to terminate the contract in anticipation of breach of contract, and can unilaterally terminate the international contract and claim compensation from the other party. This provision is more suitable for express breach of contract. However, for implied breach of contract, for fear that it is difficult to grasp the exact evidence of the other party's breach of contract, the observant party should not take measures to terminate the contract, and can refer to the provisions of the Civil Code to suspend the performance of the contract or suspend the performance or preparation of the contract to avoid expanding its own economic losses; Immediately notify the other party to provide appropriate performance guarantee within the expected period. If the other party fails to provide proper guarantee within the processing period, it shall be deemed that the other party has expressly broken the contract, and at this time, the contract may be dissolved according to law and claim compensation for losses. This kind of self-help measure is similar to exercising the defense of uneasy performance.

(3) Judicial relief

According to the relevant provisions of the Civil Code, if one party breaches the contract, the other party may require it to bear the liability for breach of contract before the expiration of the performance period. Such measures are easy to operate for express breach of contract; However, for implied breach of contract, the observant party must grasp the exact evidence of the other party's expected breach of contract before resorting to the law, otherwise, it will be unfavorable to itself because of the lack of evidence.

(4) Waiting for performance

When one party anticipates a breach of contract, the other party may insist on the validity of the contract, demand or wait for the other party to perform the contract due to wait and see whether the other party's attitude has changed, and then decide whether to take corresponding measures. For the express breach of contract, the observant party should explicitly ask the other party to withdraw the notice of breach of contract, instead of just waiting for the other party to perform it, so as not to expand the loss. For implied breach of contract, the observant party has no definite evidence to prove the other party's breach of contract at the moment, and can wait for the other party to fulfill it when it expires; If the other party fails to perform at the due date, it may be held liable for breach of contract according to the actual situation of non-performance, or the contract may be terminated according to law and claim compensation for losses.

To sum up, if the travel agency breaches the contract, consumers can complain to consumers, to the relevant superior departments of the travel agency, and even to the court.

With the improvement of people's quality of life, people pay more and more attention to "enjoyment" in life, and tourism has become one of the important ways for people to enjoy life. Along with the "tourism wave", there are also various disputes, such as compulsory consumption of tour guides, inadequate service of travel agencies, imperfect management of scenic spots, etc. So how can we safeguard our legitimate rights and interests if we encounter tourism disputes? In the event of a tourism dispute, we can call the 12301 national tourism service hotline to complain about rights protection. I. What is the 12301 national tourist complaint service hotline? The 12301 tourist service hotline is a tourist public service hotline invested by the National Tourism Administration and established by the Provincial Tourism Administration. Mainly to travel inquiries, travel complaints, travel rescue and travel tips as the basic service content, to solve various problems encountered by consumers before and during the trip.The 12301 National Tourism Service Hotline also shares information with the 12315, 12345 and 12308 China Citizen Consular Protection Hotline in some provinces and cities in China, so as to protect the rights and interests of tourism consumers to the greatest extent. III. Scope of Acceptance of 12301 1. The scope of tourism consultation accepted includes: tourist attractions, travel agencies and tour guides, accommodation facilities, online travel enterprises, tourism bureau information, entry and exit, etc. The contents of consultation include the qualifications of tourism enterprises, the charging standards of travel-related enterprises, the service attitude of staff, personnel detention, urgent problems involving personal safety, toilets in scenic spots, uncivilized tourists, low-cost tours and so on. 2. The specific contents of travel complaints include: major problems such as staying in the travel itinerary, urgent problems such as no room in the hotel, and inability to enter the park in the scenic spot. Under the authorization of the tourism supervision department, 12301 will inform the tourism enterprises of relevant information to help tourists solve the problems in real time and improve the tourist experience. Record the tourist demands that constitute effective complaints and submit them to the national tourism complaint reporting platform, track the work orders uploaded to the national tourism complaint reporting platform, provide dynamic information on complaint handling to tourists according to tourists' requirements, and realize regular return visits to complainants for closed complaints. 12301 is the party that records and transfers the complaint cases, and it has no jurisdiction and law enforcement power, and the complaints are all directly to the territory. According to Decree No.32: Measures for Handling Tourism Complaints promulgated by the State Administration, the case shall be handled within 60 days from the date when the local tourism authorities accept the case.If you encounter acts that infringe on your legitimate rights and interests during your travel, don't take drastic actions. You must complain through the 12301 platform in time and seek the help of relevant government departments. If you have any questions, you can also inquire through 12301.