| With the continuous improvement of citizens’ living standards and the continuous yearning for spiritual life,tourism plays an important role in people’s life.With the rapid development of tourism,there are endless problems of the protection of tourists’ rights and interests.The main purpose of this paper is to investigate and analyze the problems in online tourism,and then study the rights and obligations of tourists involved,as well as how to carry out effective protection and countermeasures from the legal level when the rights are infringed.By refining the contents and summarizing the problems of 71 judgments on the magic weapon of Peking University,this paper classifies and separately analyzes the rights and interests protection issues involved in the online tourism platform.It is found that although the state,society and even theoretical circles continue to emphasize strengthening the protection of the rights and interests of consumers,the practice of judicial trial continues to weaken the rights and interests of consumers,There are two reasons: first,the theory has insufficient understanding of the distinction between tourism consumers and consumers.The two are concepts in the social sense rather than in the category sense.The reason for the distinction is that human services,as "commodities",cannot be completely equivalent to products,and products do not need to be protected by "people",but for human services,the basic rights of service providers need to be taken into account,which is their essential difference.The second is the deconstruction and reshaping of the existing tourism norms by the network platform or the third-party platform.Specifically,as the market subject of hierarchical management,tourism operators will naturally be given huge responsibilities and responsibilities by the administration.However,the rise of the third-party platform enables some natural persons who do not have the qualification of market subjects to carry out tourism service activities,and the current law can not identify them as tourism operators;The e-commerce law and the regulations on the administration of market subject registration stipulate four categories of natural persons who do not need to register as market subjects,including the provision of personal services.The rise of the network platform and its shaping of the behavior mode of the whole tourism industry make the legal norms themselves dissolved,and the new platform rules enter the legal system through these unchanged provisions for new "coding" and form new legal norms.This is the digestion and reshaping of tourism norms by the rise of the third-party platform.Based on the above understanding,this paper further analyzes the practical problems of the protection of tourists’ rights and interests,and finds that there are a large number of false publicity on the tourism platform,the lack or non-standard of electronic contract and the hidden dangers of online payment system.These problems are reflected in the judicial judgment,which is reflected in the problem of breach of contract caused by the inconsistency between the itinerary and the actual tourism route,because of the disputes caused by the conclusion and termination of the tourism contract.In addition,there are also problems caused by the unclear performance subject,the lack of responsibility subject on the deposit,the difficulty of accountability,the confusion of local communication and so on.These problems fully show that compared with traditional travel agencies,online tourism platform has appeared new problems,new risks and threats to tourists.Therefore,the discussion on the protection of consumers’ rights and interests of online tourism platform needs to be solved urgently.The reasons are mainly caused by the problems of legislation and supervision,the difficulties of tourists in safeguarding their rights,and the characteristics of online platforms.Specifically,China mainly adopts the contract law to protect consumers’ Tourism rights and interests,and many provisions of the e-commerce law have not been refined.Due to different cognition and legal level,consumers lack efficient ways of suggestions,complaints and appeals in the protection of rights and interests.At the regulatory level,because the online tourism platform involves not only the responsibility of the tourism regulatory department,but also the responsibility of the network regulatory department.However,according to the traditional way of tourism supervision,different provinces are responsible for different supervision fields,but the coverage of online tourism platform is very wide.Its universality,diversity and cross regional characteristics require the supervision departments to cooperate,coordinate and unify,and establish a unified supervision coordination and dispatching platform to avoid the phenomenon of prevarication in the supervision link.In addition,the principle of safe haven responsibility of the platform makes the platform have no liability for compensation to consumers.Only when the platform fails to fulfill the obligation of prompt and care,or when tourists can’t find a tourism service provider,and the online tourism platform can’t provide real and accurate information of tourism service providers,can the online tourism platform bear the corresponding responsibility.As for the specific ways to solve the countermeasures,it can be carried out from three aspects: first,from the perspective of law,ensure the protection of tourists’ rights and interests by improving the protection of personal information and the provisions of anti-monopoly law on the platform;From the perspective of the trust of the platform and the means to protect the interests of tourists;Finally,from the perspective of normative coordination,laws,platforms and governments can protect the interests of tourists in all aspects by establishing an integrity platform and integrity system for the tourism market and strengthening the establishment of a unified regulatory service platform in terms of supervision. |
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