The Study Of The Legal Problems On The Protection Of Passengers' Right Under The Flight Delay

With the rapid development of air transport industry,travel by aircraft has become a civilian population choose,the substantial increase of the number of flights and the increasing saturation of the routes has posed a new problem to the flight punctuality rate,flight delay has gradually become the focus of air transport services.Although there is a steady voice calling for strengthening the protection of passengers' rights,the rights and interests of airline passengers are not adequately protected in judicial practice,whether the deficiency of the legislative concept or the defects of existing provisions? Based on this,this paper will discuss the problem of the protection of passengers' rights under flight delay.The legal relationship between the transportation contracts is the most basic legal relationship between passenger and air carrier,and the protection of the rights of passengers is based on the identity of the party of the passenger contract.The rights of passengers are protected based on contractual relations under the provisions on flight delay in the Warsaw Convention and the legislation of early European Union and the United States.With the development of consumer protection movement,modern contract law has undergone the reverse movement from "contract to identity",and the another identity of passengers — consumers gradually begin to emerge.The practice of traditional civil law to adjust the legal relationship between consumers and operators based on the freedom of contract,and the legislative concept of the pursuit of formal justice have been difficult to meet the urgent need of social protection for consumer rights.A series of specific consumer rights protection laws are emerging in countries.The European Union and the United States attach great importance to the protection of the interests of aviation consumers in the event of flight delay,and have published specific laws on the protection of passengers' rights under the identity of consumers.When the delay occur,the legislation especially makes meticulous provisions of the carrier's obligation to inform,care,help to assist,which opened a new chapter on the protection of aviation consumer.From the concept of protection of the weak,the legislative concept of the European and American countries hoping to provide aviation passengers protection of consumer rights is worthy of affirmation,but the tendency of excessive protection has ignored the basic identity of the passengers as parties to the transport contracts,and shackled the carriers heavily.In addition,the punctuality of flight is not fully controlled by the airline,but also involves the airport,Air Traffic Management Bureau and other factors,bring burden of consumer rights to bear on the carrier blindly will lead to the increase in passenger travel cost instead.With the rapid development of aviation industry,traveling by aircraft becomes the way that civilians can choose.The large increase in flights and the saturation of the routes have posed new challenges for the punctuality of flights.Since the nature of flight delay violates the contract of carriage,the liability of the carrier should be the liability of breach of the carriage contract.While protecting the rights of consumers,we should give full consideration to the particularity of air transport at the same time,recognizing that the problem of punctuality is not entirely controlled by airlines.If whether or not the airline is at fault,the carrier shall bear aggravated economic burden for compensation of passengers in the name of protecting consumers,these additional cost factors will be considered in the fare,increasing the travel costs of all passengers.Therefore,in formulating legislation on the protection of passengers' rights under flight delay,the contradiction between the protection of consumer rights and the interests of carriers should be balanced.While protecting the rights of consumers of aviation passengers,we should also pay attention to the limits and boundaries of the rights of passengers.The carrier should not be imposed on the obligation exceeding its business and competence.The reasons for the delay should be distinguished in the first place.The carrier's obligations and responsibilities under the delays resulting from the carrier's cause and the non-carrier causes shall be distinguished and stipulated,rather than requiring the carrier to undertake any other obligations such as assistance without exception.Secondly,the indirect loss of passengers caused by flight delay,on the basis of non-violation of the principle of predictability,should be awarded compensation,but require passengers to disclose interest to carrier in advance and to bear the burden of proof of the amount of loss.Thirdly,when the flight delay occur the consumers' rights to know should be protected,that is,to make meticulous and clear stipulation of the carrier's obligation to inform,the carrier's obligation of the commitment to inform is limited to the ability within the scope of the carrier,which can be drawn from the EU and the United States practices.Lastly,the specific undertaking of the obligation of assistance depends on the reasons for the delays,and for the delays caused by non-carrier reasons,the carrier only needs to assist in arranging the passengers' accommodations,rather than bear the cost of accommodation for passengers.Before the introduction of the “Normal flight management stipulation ",a series of issues of the legislation in regard to flight delay exist in China,involving the deficiencies of the concept of consumer protection,scattered and broad legislation,lack of operability.The provisions of the Civil Aviation law and the contract law lack in the protection of consumers' rights,while other regulations,normative documents and local regulations focused on the protection of passengers' rights of flights delay bring about the problem of narrow application scope and lower legal rank.Law on Protection of the Rights and Interests of Consumers provides a large and universal protection,which is not intended for the protection of consumers' rights and interests under flight delay.“Normal flight management stipulation" is a special protection of the interests of aviation consumer legislation,which is to balance the interests of the passenger and the carrier as the value orientation,solved the above-mentioned problems to a certain extent,but there is still defect of disputes resolution mechanisms,the shortage of airport as the subject of delay liability,still has improved space.Based on this mentality,this paper is divided into three parts:The first part analyzes the evolution of the aviation passengers from the contract parties to the consumer,and discusses the influence of the air passenger identity transform on the protection legislation of passengers' rights under the flight delay.The second part analyzes and evaluates the special legislation and judicial practice of the EU and the United States on the protection of consumers' rights in the case of flight delay,through the carding of the problems in the preceding chapters.The third part analyzes the value orientation of the legislation on the protection of passengers' rights under dual identities in the case of flight delay as well as the specific measures which can be taken,and points out the shortcomings of the Normal flight management stipulation.