In daily life, consumer can be encountered sometimes sundry " Xiang Yu the Conqueror " format clause. Yesterday, format clause undertook the partial inequity that key of Qingdao city industrial and commercial bureau consumes a domain to exist in the light of travel the analysis is commented on, in pointing out for consumer travel is consumed 10 big " trap " .
1. [contract of travel of some travel agent] tourist of occurrence odd number is like in journey process, party B (consumer) agree to fill by the standard the room that make sheet is poor.
Comment on: Group of tourist ginseng signing up travels, had agreed according to the contract pay League membership dues. Odd number tourist appears in viatic process, travel agent is accepting a tourist to sign up, in the process that form a delegation should can reasonable foreknow and control, single room difference ought to be the management risk that travel agent proper motion assumes. Home remedy stipulates the visitor helps hand in, accentuated the responsibility of consumer, disobeyed " contract illegal behavior controls processing way " the 10th the 2nd, operator and consumer use format clause to conclude of the contract, operator does not get aggravating in format clause customer following responsibility: (2) assume ought to offer what just assume to manage risk responsibility by format clause.
2.[some travel agent is special inform] the accident produces during proper motion activity, indemnity compensates for amount in the limit of with insurance company, travel agent does not assume insurance company to recoup the cost beyond the forehead.
Comment on: " tort liability law " thirtieth sets 7 times, the public administrative person such as guesthouse, bazaar, bank, station, public place of entertainment or the organizer of activity of of a mass character, all did not guarantee obligation to safety, cause other to damage, ought to assume tort responsibility. Because the behavior of the 3rd person causes what other damages, assume tort liability; to manage a person by the 3rd person or the organizer did not use up safety to guarantee obligation, assume corresponding additional responsibility. " travel mode " the 70th regulation, during tourist proper motion orchestrates an activity, travel agent did not use up obligation of safe clew, deliverance, ought to damage to the person of tourist, belongings loss assumes corresponding responsibility. Travel agent ought to assume the obligation such as clew of reasonable organization arrangement, risk, safe safeguard as organizer of group travel activity. But the existence as a result of danger of travel agent responsibility, a lot of travel agent regard insurance compensation as is his pretext, do not be in charge of without exception to exceeding the loss that recoups amount, think insurance company just is person of liability to pay compensation even. The way that home remedy makes responsibility restrict is not accorded with " tort liability law " relevant provision, disobeyed " contract illegal behavior controls processing way " the 9th the first, 2 regulation: Operator and consumer use format clause to conclude of the contract, operator must not avoid his following responsibility in format clause: (One) the responsibility;(that causes consumer person harm 2) create liability of consumer belongings losing because of intended gross perhaps error.
3.[clause of penalty due to breach of contract of some travel agent] this contract performs a procedure in, party B (consumer) put forward to remove of the contract, ought to according to contract amount 50% undertake penalty due to breach of contract.
Comment on: " contract law " the 114th the 2nd section provision, the losing that beyond the mark prep above creates conventional penalty due to breach of contract, party can request people court to perhaps arbitrate the orgnaization gives decrease appropriately. " top people court about applicable " contract law of People's Republic of China " the explanation of a certain number of problems (2) " the 29th make clear the 2nd times: The penalty due to breach of contract that party agrees causes losing more than of 30% , can maintain commonly for contract law of the 114th the 2nd section provision " the loss that beyond the mark prep above causes " . The number of penalty due to breach of contract ought to consider with actual loss, unfavorable and exorbitant; can't make up for caustic miss the opportunity when penalty due to breach of contract, travel agent still can advocate damages, but it is beyond the mark to cannot agree through format clause tall penalty due to breach of contract, disobeyed otherwise " contract illegal behavior controls processing way " the 10th the first: "Operator and consumer use format clause to conclude of the contract, operator does not get the following blame of aggravating in format clause consumer: (One) penalty due to breach of contract or damages exceed legal amount reasonable perhaps amount " , be suspected of using liability of consumer of format clause accentuation.
4. [product of shopping platform of network of some travel product explains] one sell on commission gives this product, not exchange a purchase / not refund.
Comment on: " contract law " the 77th regulation: Party talks things over consistent, can change a contract. The 93rd sets: Party talks things over consistent, can remove contract. The network buys content product to be consumed for imprest commonly, do not retreat do not change / not refund, it is not to allow to consumer is changed or remove essentially contract. But the contract performs a procedure in, both sides all has legal right to put forward to change or remove, blame break a contact also just has authority to pass penalty due to breach of contract or damages offsets a loss, but do not get home remedy to eliminate right of the other side. This behavior disobeyed " contract illegal behavior controls processing way " eleventh the first: "Operator and consumer use format clause to conclude of the contract, operator must not eliminate consumer in format clause following right: (One) be changed lawfully or remove the right of the contract " , be suspected of using format clause to exclude the illegal act of consumer right.
5. [shopping platform of network of some travel product is special remind] the product information that this platform releases is offerred by XX businessman, pertinent information authenticity is lawful this platform is not in charge of the gender without exception.
Comment on: " method of network buying operation " the 26th regulation: "The operator that tripartite trades to platform operator ought to be tasted to passing platform distributors or provide a service and information of the commodity that its release and service build monitoring system, discovery has the act that violates legislation of industrial and commercial administration, code, regulations, ought to platform operator seat is industrial and commercial administration department report, adopt measure in time to check, can stop to offer tripartite to trade to its when necessary platform serves. " thirtieth return a regulation: " tripartite trades platform operator ought to be examined, record, save the commodity that releases on its platform and service information content to reach its to release time. " operator of shopping platform of travel product network hands in easy implementation to manage an end through facilitating, also have at the same time examine, the obligation that monitoring operator releases information, violate compasses behavior to ought to give to breaking the law check or report. Violate compasses home remedy to avoid with respect to the irregularity of operator duty disobeyed " contract illegal behavior controls processing way " the 9th the 3rd: "Operator and consumer use format clause to conclude of the contract, operator must not avoid his following responsibility in format clause: (3) assure responsibility to what offerred goods perhaps serves to ought to be assumed lawfully " , be suspected of using format clause to absolve oneself to handle responsibility.
6. [notice is booked on some hotel net] because demand of customer of travel busy season is exuberant, the state that do not have a room appears after be being booked on the net, this hotel is not in charge of without exception.
Comment on: " contract law " the 107th regulation: Obligation of contract of nonperformance of party one party perhaps fulfills contract obligation not to accord with an agreement, ought to assume continue to fulfill, take remedial action perhaps compensates for the responsibility of breach of contract such as the loss. " rights and interests of Shandong province consumer protects byelaw " thirtieth regulation: Provide a service with imprest means, operator deregulation perhaps did not provide commodity, service according to the agreement, ought to continue according to the requirement of consumer fulfill or go back imprest and its accrual, bear the other and reasonable fee that customer pays. The net books a room is a process that should arrange commitment actually, consumer puts forward those who book a room to want to make an appointment with, operator affirms reach acceptance, contract namely become effective. When be being entered, tighten because of busy season housing spruce for reject to provide a service, ought to undertake corresponding responsibility of breach of contract. This clause disobeyed " contract illegal behavior controls processing way " the 9th the 4th: "Operator and consumer use format clause to conclude of the contract, operator must not avoid his following responsibility in format clause: (4) the responsibility of breach of contract that ought to undertake lawfully because of break a contact " , be suspected of using format clause to prevent the illegal action of oneself responsibility.
7. [notice of some hotel client] be lost in accommodation process or of attaint hotel article, press cost price 3 times give compensation.
Comment on: Missing attaint article undertakes compensation is the obligation that consumer should use up, but compensatory loss ought to be a basis with actual loss circumstance. Wait for ask a price of formal all over the sky with inn hall annunciate or compensate for times higher, disobeyed " contract illegal behavior controls processing way " the 10th the first: "Operator and consumer use format clause to conclude of the contract, operator does not get the following blame of aggravating in format clause consumer: (One) penalty due to breach of contract or damages exceed legal amount reasonable perhaps amount " , be suspected of using liability of consumer of format clause accentuation.
8, [some public place of entertainment is special clew] valuable asks appropriate to keep, if have,lose do not be in charge of without exception.
Comment on: " tort liability law " thirtieth sets 7 times, the public administrative person such as guesthouse, bazaar, bank, station, public place of entertainment or the organizer of activity of of a mass character, all did not guarantee obligation to safety, cause other to damage, ought to assume tort responsibility. Because the behavior of the 3rd person causes what other damages, assume tort liability; to manage a person by the 3rd person or the organizer did not use up safety to guarantee obligation, assume corresponding additional responsibility. Public governor is had to consumer legal reminds and guarantee obligation, all did not cause article to lose to obligation ought to assume corresponding responsibility. Home remedy sets him " do not be in charge of without exception " , disobeyed " contract illegal behavior controls processing way " the 9th the 2nd regulation: Operator and consumer use format clause to conclude of the contract, operator must not avoid his following responsibility in format clause: (2) because perhaps weigh big error intentionally,create liability of consumer belongings losing.
9. [clause of some restaurant format] fee of this disinfection of inn repast tableware is same 2 yuan / person.
Comment on: Basis " food safety law " thirtieth 3 the 5th section provision: Food production is managed ought to accord with food safety standard, accord with following requirement: (5) tableware, drink is provided and fill the recipient that puts immediate entry food, before using ought to abluent, disinfection. Undertake to tableware the law that is operator defines Wu alexipharmic, also be the premise that consumer accepts repast. Use the form of statement or annunciate, let consumer assume tableware to disinfect cost, its behavior disobeyed " contract illegal behavior controls processing way " the 10th the 3rd: "Operator and consumer use format clause to conclude of the contract, operator does not get aggravating in format clause customer following responsibility: (3) the responsibility that laws and regulations of law of other according to should not assume by consumer " , be suspected of using liability of consumer of format clause accentuation.
10. [entrance ticket of some travel project endorses clause] this travel project has certain and dangerous sex, the tourist tries to notice carefully please, the person belongings loss that in participating in a process, causes is assumed by oneself please.
Comment on: " top people court travels about cognizance statute of dispute case comfortable use the regulation of a certain number of problems " the 7th regulation: Travel operator, travel assists server to all did not guarantee obligation to safety, cause tourist person to damage, belongings loss, tourist requests travel operator, travel to assist server to assume responsibility, people court should grant to support. Because the behavior of the 3rd person causes tourist person,damage, belongings loss, assume operator of responsibility; travel, travel to assist server to did not use up safety to guarantee obligation by the 3rd person, tourist requests his to assume corresponding and additional responsibility, people court should grant to support. Travel project operator, auxiliary server has safeguard obligation, all did not go to those who guarantee obligation to ought to assume corresponding responsibility, cannot remind actively because of oneself, of the tourist neglectful and avoid duty. Let consumer proper motion bear a loss with the means of format clause, disobeyed " contract illegal behavior controls processing way " the 9th the first paragraph, the 2nd regulation: Operator and consumer use format clause to conclude of the contract, operator must not avoid his following responsibility in format clause: (One) the responsibility;(that causes consumer person harm 2) create liability of consumer belongings losing because of intended gross perhaps error.
