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Abstract: Last year's National Day holiday is the first golden week after China has entered the normalization of epidemic prevention and control. According to the Ministry of Culture and Tourism, there were 637 million visitors nationwide during the last National Day holiday. Many popular scenic spots have received visitors close to the same period last year. Tourism has become the main form of people's spiritual and cultural consumption. The holiday economy is conducive to the recovery of domestic demand. So how to protect the safety of tourists and reduce the cost of safety accidents in scenic spots becomes particularly important. This paper aims at the above two issues.
Keywords: Tourist Safety | Responsibility Assumption | Scenic Spot Obligation
I. Tourist Areas are Public Places
On February 6, 2016, the State Council promulgated the Regulation on the Administration of Sanitation in Public Places, which lists the public places, namely: (1) hotels, restaurants, inns, hostels, coaches and carriages, cafes, bars and teahouses; (2) public bathrooms, barbershops and beauty shops; (3) theatres, video halls, amusement halls, dance halls and music halls; (4) stadiums, swimming halls and parks; (5) exhibition halls, museums, art galleries and libraries; (6) shopping malls (shops) and bookstores; (7) waiting rooms, train (airplane or ship) rooms and public transportation vehicles. Apart from this, no other laws or regulations define "public places". In judicial practice, whether certain areas are public places is usually determined by reference to this regulation.
Based on this regulation, it is generally believed that public places are various places provided for the public to engage in social life. Public places refer to places where people gather frequently and are used by the public or serve the public. Public places are an integral part of people's life and a window to reflect the material conditions and spiritual civilization of a country and a nation. Obviously, tourist attractions are public places.
II. Imputation Principle
In accordance with Article 1198 of the General Rules of the Civil Law, the operators and managers of tourist attractions shall bear tort liability if they fail to fulfill their obligations and cause damage to others as a result of their failure to do so.
In the event of damage to others caused by the conduct of a third party, the third party shall bear tort liability. The operators, managers or organizers of tourist attractions who fail to fulfill their obligations shall bear corresponding supplementary responsibilities. The operators, managers or organizers of tourist attractions may, after assuming their supplementary responsibilities, claim compensation from the third party.
In short, if the operators, managers or organizers of tourist attractions have fulfilled their obligations within a reasonable limit, they will not bear tort liability if they cause damage to others. In accordance with Article 6 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases on Compensation for Personal Injury, the scope of reasonable limits shall be determined based on common sense.
III. Allocation of Burden of Proof
When claiming damages, the victims shall bear the burden of proof that the safety obligor, i.e. the operator, manager or organizer of the tourist attraction, has failed to fulfill their safety obligations recognized in line with general social values, while the safety obligor, the operator, manager or organizer of the tourist attraction shall defend or prove that he/she has fulfilled his/her safety obligations.
IV. Contents of Safety Obligations of Tourist Attractions
The obligation of safeguarding the safety of a tourist area is a legal obligation of the operator, manager or organizer of the tourist area. The obligors for safety shall not only safeguard the safety of the place or facilities under their management, but also give necessary reminders, warnings, instructions, notification, persuasion, prevention, assistance, and timely rescue to those who move in the place or use the facilities so as to prevent the occurrence of personal injury and property loss. It is important to note that in many cases, tourist attractions can prove that a warning sign has been raised, but it still cannot be proved the existence of such a warning sign at the time of the accident.
Based on the adjudication cases in judicial practice and in combination with different tourist attractions, the key safety obligations formed are easily overlooked and are shown in the table below:
V. Tourists entering scenic spots without tickets, complimentary tickets or without tickets: Is the scenic spots obligated to safeguard security
It is unanimously agreed in judicial practice that scenic spots without tickets by complimentary tickets or without tickets.
For the tourists entering scenic spots without tickets, there are two different opinions in judicial practice. One opinion is that no matter whether the tourists purchase tickets or not, the operators have the obligation to safeguard the tourists entering scenic spots. Another opinion is that tourists enter scenic spots without tickets, do not form a contractual relationship with scenic spots, and scenic spots have no obligation to safeguard the tourists. The author inclines to the first opinion.
VI、 Obligation of Security for Free/Open Tourist Attractions
It is unanimously agreed in judicial practice that free/open tourist attractions still have the obligation to safeguard the tourists.