摘要
对《旅游权利法案及旅游者法典》的误读造成了对旅游权利理解的诸多混乱。文章从应然的角度分析,旅游权利根据义务主体的不同,可分为个人针对经营者享有的旅游民事权利,个人针对国家享有的公民旅游权利。前者系私法权利,包括法定权利、约定权利,这一类权利甚少争议。后者属公法权利,包括前往旅游目的地的自由、旅游资源享用权,这一类权利从基本概念到具体内涵都十分混乱,比如错误地将休息、休假权、旅行自由等权利视为旅游权利。上述两类权利中,公民旅游权利在当前制度环境下存在救济的困难,但这并不影响旅游权利整体的现实价值,它可以成为旅游法的价值支撑,并作为统一旅游法律体系的核心原则。
The misreading of Tourism Bill of Rights and Tourist Code caused a lot of confusion in understanding tourism rights. The tourism right of this document contains the public rights and private rights. The right to rest and have periodic paid leave and some other rights mentioned by the document do not belong to tourism right; they are just the premise rights for people to take part in tourism activities. Tourism right contains specific rights which have direct and necessary association with tourism activities. It does not belong to human rights or basic rights. Tourism right could be divided into two categories according to the obligor. The first category is tourism civil rights with suppliers of tourism services as its obligors. It belongs to private law rights and includes statutory rights and convention rights. The second category is citizens＇ tourism rights with the state as its obligors. It belongs to public law rights and includes the freedom of going to tourism destinations and the right to access to tourism resources. The higher rank right of the freedom of going to tourism destinations is the freedom of travel. It has a much wider range and does not belong to the tourism right. The right to access to tourism resources is the right that individuals request the state to review and restrict the unreasonable threshold to public tourism resources which is set by operators and managers. It is hard to argue that the state has the obligation to meet the citizens＇ travel demand, so the right to meet travel demand is almost impossible to set up. Remedy right of tourism right also can not be set up. As for the disabled and other special kinds of tourist, their rights and interests regarding tourism could be research object, but those rights do not belong to the category of tourism right. The realistic foundation of the emergence of the concept of tourism right and its great possibility to be written into law lies in the importance of tourism to the people and the importance of the tourism industry to the nati
出处
《旅游学刊》
CSSCI
2012年第12期23-32,共10页
Tourism Tribune
基金
杭州市哲学社会科学重点研究基地项目支持~~
关键词
旅游权利
内涵
理论基础
tourism rights
connotation
theoretical basis
