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1. Great progress has been made in the construction of tourism legal system in China, and the pattern of managing tourism according to law has basically taken shape.
Tourism is an industry with strong dependence and high correlation, and its healthy development must be guaranteed by law. Since the reform and opening up, the rapid development of tourism legal system has gone through the process from scratch, accelerated establishment and gradual strengthening. Especially after the Ninth Five-Year Plan, with the rapid development of tourism, the construction of tourism legal system is also changing with each passing day, which has promoted China to rank among the world's major tourism countries. First, the pace of tourism legal system construction is accelerating. At first, the construction of tourism legal system in China was mainly manifested in the management of administrative means. With the overall promotion of the country's legal system construction and the accelerated development of tourism, the development and management of tourism have accelerated into the legal track, and the work pattern of managing tourism according to law has basically taken shape. Mainly manifested in:
1. Transition from planned economy to market economy.
During the Eighth Five-Year Plan period, many contents of tourism laws and regulations were directly related to the operation of tourism enterprises, such as tourism prices, foreign exchange, tourism commodity production, foreign exchange quotation settlement, toilet charges, ticket prices and so on. This reflects the characteristics of the planned economic system. Since the Ninth Five-Year Plan, most of these projects have been delegated to tourism enterprises, and the content of legislative norms has gradually shifted to managing market access, market order and operating rules, which reflects the gradual transformation of tourism administrative functions.
2. Transition from single content to comprehensive aspect. During the Eighth Five-Year Plan period, the contents of tourism legislation were generally simple, and most of them stipulated some matters, such as the quality management of travel agencies, matters needing attention in tourist visas, the basic standards of customer service, the provisions of tourism complaints, the collection of tourism development funds, the examination and approval of designated production enterprises of tourism commodities, and the reporting and handling procedures of tourism safety accidents. This reflects the gradual establishment of tourism legislation. After the "Ninth Five-Year Plan", the contents of tourism legislation and norms have obviously tended to be comprehensive, and laws and regulations involving certain aspects have obviously increased, such as travel agency management, tour guide management and overseas tourism management. Taking overseas travel as an example, many normative documents were issued before, which were later replaced by the departmental regulations of 1997 and the administrative regulations of 2002.
3. The scope of norms has gradually shifted from traditional fields to emerging fields. During the Eighth Five-Year Plan period, tourism legislation mainly focused on tourism reception and management, and relatively concentrated on travel agencies and foreign-related hotels, that is, the traditional industrial scope since the beginning of tourism development; After the Ninth Five-Year Plan, with the rapid expansion of tourism scale, "grand tourism" has changed from concept to reality, and tourism legislation has also broadened the fields, such as joint venture travel agencies, star rating of inland cruise ships, tourism drifting management, tourism standardization management, tourism planning management, tourism statistics management, and the creation of excellent tourist cities.
4. Accelerate the transformation from administrative means to legalization. During the Eighth Five-Year Plan period, most tourism regulatory documents were issued in the form of regulatory documents, even if they were issued or approved by the State Council. According to incomplete statistics, there are as many as 45 tourism regulations and normative documents issued here, and quite a few of them are issued in the form of notices. After the Ninth Five-Year Plan, with the implementation of the legislative law, the legalization of tourism accelerated to the right track, and the number of normative documents issued here decreased by about 50%, while two administrative regulations, the Regulations on the Administration of Travel Agencies and the Regulations on the Administration of Tour Guides, were issued. Since the Tenth Five-Year Plan, 1 administrative regulations (regulations on travel agencies) have been revised, 1 administrative regulations (measures for the administration of China citizens' travel abroad) and 5 departmental regulations have been promulgated, and the legislative norms and legal effect of tourism have been significantly improved.
Second, the tourism legal system in some fields has gradually become a system. There is no comprehensive tourism law in the tourism industry, but in recent years, great achievements have been made in the tourism legal system in some fields, and a tourism legal system centered on the travel agency industry has initially formed.
1. The construction of tourism legal system in the travel agency industry is improving day by day. Travel agencies are known as the leaders of tourism. With the rapid development of tourism, the number of travel agencies has increased rapidly, from 4,252 in China in 1996 to 10532 in 2006. In order to strengthen the management of the travel agency market in time, the State Council issued the first tourism administrative regulation-Travel Agency Management Regulation in June 1996+ 10/5. In order to implement the Regulations, the National Tourism Administration has formulated the Detailed Rules for the Implementation of the Regulations on the Administration of Travel Agencies, and has successively issued some departmental rules and normative documents, such as the Interim Provisions on the Quality Guarantee of Travel Agencies, the Provisions on the Liability Insurance of Travel Agencies, the Provisions on the Administration of Qualification Certification of Travel Agency Managers, the Notice on Strengthening the Administration of Approval and Registration of Travel Agencies, and the Notice on Strengthening and Regulating the Administration of the Marketing Department of Travel Agencies. , thus forming a relatively complete law with travel agencies as the core. After China's accession to the WTO, in order to adapt to the changes in the new situation, the Regulations on the Administration of Travel Agencies were quickly revised, and the content of "foreign-invested travel agencies" was added, so that the regulations included the management of various travel agencies.
2. Tour guide management has laws to follow. Tour guides are specific organizers and service providers of tourism activities, which are closely related to tourism consumption and reception service quality. There are 6,543,800+5,000 tour guides in China, and a large number of seasonal temporary tour guides. 1999 65438 On May 4th, the State Council issued the Regulations on the Management of Tour Guides, which is the second administrative regulation in the tourism industry, and clarified the qualification examination system, tour guide certificate system, classification and grading of tour guides, duties and punishments of tour guides, providing legal guarantee for establishing a tour guide team with excellent political and professional quality. In order to implement the regulations, the National Tourism Administration issued the Measures for the Administration of Tourist Guide Cards in August 2006 1999, and the Measures for the Implementation of the Management of Tour Guides in February 2006 165438, which increased the regulations on the classification management, registration system, score management and annual review management of tour guides, and strengthened the daily management of tour guides.
3. Outbound tourism management has gradually entered the legal track. In order to strengthen the management of outbound tourism, 1 July, 19971day, with the approval of the State Council, promulgated the Interim Measures for the Administration of Overseas Tourism of China Citizens at Their Own expense. After five years of development, China's outbound tourism has reached 1.2 1.33 million, and the growth of private outbound tourism has obviously accelerated. In order to adapt to the development and changes of the new situation, the State Council decided to implement the Measures for the Administration of Overseas Travel of China Citizens on July 1 2002, which is the third administrative regulation of the tourism industry and has taken a big step towards legalization in management means. According to the new management method, the number of outbound travel teams has been expanded from 67 to 528; Subsequently, the "China citizens' overseas travel service standards" was promulgated; 10 10 On 28th, the National Tourism Administration issued the Measures for the Administration of Outbound Tour Leaders, which made the management of outbound tourism more law-based and rule-based.
3. A major breakthrough has been made in the construction of local tourism legal system, which is an important part of the construction of national tourism legal system. Since the Ninth Five-Year Plan, tourism has grown rapidly as a new growth point of the national economy, and the pace of local tourism legal system construction has followed closely.
1. The starting point of tourism legislation in various provinces and cities is relatively high.
During the Eighth Five-Year Plan period, the national tourism legislation was mainly based on normative documents, and most provinces and cities formulated tourism regulations in the name of the government. According to statistics, there are 18 provinces that only accelerate the development of tourism, and there are 2 provinces that comprehensively manage it. During the Ninth Five-Year Plan period, in addition to 10 provinces, 2/kloc-0 provinces, 7 cities with separate plans and sub-provincial cities issued local tourism regulations (tourism management regulations) promulgated by provincial people's congresses.
2. Most provinces and cities have formulated tourism regulations. On June 22nd, 1995, the Standing Committee of the First People's Congress of Hainan Province approved the Regulations on Tourism Management in Hainan Province, which became the first local tourism regulation in China. Since then, the provinces have accelerated the pace of tourism legislation. As of early June 2002 165438+ 10, except Jilin, Qinghai, Tianjin and Shanghai, 27 provinces have formulated tourism regulations, accounting for 87% of the total number of provinces in China (except Taiwan Province Province); Xiamen, Qingdao and Shenzhen issued this regulation, accounting for 60% of the total number of cities in China. In addition, Wuhan, Harbin, Zhengzhou, Guangzhou, Datong and Chengdu have also been reported to the provincial people's congress for approval, and the Tourism Regulations have been issued.
3. Tourism legislation meets the needs of local tourism development. In addition to formulating comprehensive government regulations and local laws and regulations, various provinces and cities have also issued many targeted regulations and normative documents, covering tourism safety, establishment of branches, tourist resorts, production of tourism commodities, income tax refund of tourism enterprises, collection of special funds for tourist attractions, individual services, special tourism projects, and interpretation of scenic spots. At present, in order to conform to WTO rules, all localities are stepping up the revision of local tourism laws and regulations. Six provinces and cities such as Hainan and Guangxi have basically completed the revision, and Beijing, Shandong, Inner Mongolia, Hubei, Shaanxi, Yunnan and other provinces, autonomous regions and municipalities have included the revision work in the plan. It is believed that this will play an important role in promoting the accelerated development of tourism in China after its entry into WTO.
Four. Since the Eighth Five-Year Plan, with the acceleration of China's legal system construction and the rapid expansion of the tourism market, strengthening tourism law enforcement has been put on the important work agenda. Especially after the Ninth Five-Year Plan, with the change of the management function of the tourism department, the practice of tourism law enforcement has greatly increased, and the level of tourism law enforcement has also made significant progress.
1. The tourism administrative law enforcement team is growing. After the Ninth Five-Year Plan, according to the needs of tourism development, the National Tourism Administration set up the Tourism Quality Supervision and Inspection Office (referred to as the "Quality Supervision Office"), which is responsible for accepting tourism complaints. Since then, the country has gradually established a three-level quality supervision network at the national, provincial and tourist cities, with nearly 1,000 employees. Among them, Sichuan Quality Supervision Institute is an administrative organization, and the quality supervision institutes and administrative offices of Shaanxi, Yunnan, Qinghai and Ningxia provinces are merged to enforce the law. 12 city has set up a tourism law enforcement (inspection and supervision) brigade, and other 100 quality supervision institutes have been given certain administrative functions, which has become an important supplement to tourism industry management and an important force in tourism administrative law enforcement.
2. The number of daily tourism law enforcement has increased. Accepting tourism complaints and conducting annual inspection of travel agency business are the daily and regular contents of tourism law enforcement. According to statistics, in 200 1 year, quality supervision institutes at all levels in China accepted 6,966 tourist complaints (only 29 provinces, autonomous regions and municipalities), and officially accepted 5,738 complaints, and closed 54 17 cases, with a closing rate of 94%. In the annual inspection of 5438+0 travel agency business in 2006, 1 142 travel agencies were suspended from passing the annual inspection, and were punished by rectification within a time limit, warning, informed criticism, rectification within a time limit and suspension of business, accounting for10.85% of the participants; 293 companies failed the annual inspection, and were cancelled, their business licenses were revoked or voluntarily closed down, accounting for 2.79% of the total.
3. Special tourism law enforcement activities have achieved remarkable results. Since the Ninth Five-Year Plan, rectifying the order of the tourism market has always been the focus of work. From the end of 1995 to the end of 1996, we cracked down on unlicensed and out-of-range operations and investigated 4093 illegal acts in the tourism market; From the second half of 2000 to the first quarter of 20001year, we concentrated on rectifying the outbound travel market, focusing on investigating and dealing with travel agency contracting, "black clubs", out-of-range operation, zero-negative tour fees, false advertisements and other behaviors. Since the first half of 2002, a total of 26,000 inspectors and 90,000 tour guides have been dispatched in the special rectification campaign to crack down on fake and shoddy and illegal publications in the tourism market, with an on-site inspection rate of 60%. Punished illegal tour guides 1700 people, investigated and dealt with a large number of illegal operators, and cracked down on the acts of bullying the market, buying and selling, and bullying customers. The order and environment of the tourism market have obviously improved.
In addition, the annual special inspection of tourism law enforcement carried out by people's congresses at all levels has urged and promoted the in-depth development of tourism administrative law enforcement; Some administrative reconsideration and administrative litigation cases caused by tourism administrative law enforcement urge tourism law enforcement personnel to further study, understand and apply the law; Various forms of tourism law enforcement training courses held in various places have also played their due role in improving the level of tourism administrative law enforcement.
Of course, due to the rapid development of tourism, some contents of the current tourism laws and regulations are difficult to keep up with the reality of the rapid development of tourism, and the state has not promulgated the tourism law. Therefore, there is still a lot of work to be done in the construction of tourism legal system in China, which needs the unremitting efforts and exploration of the whole industry.
2. On the lag and perfection of China's tourism legislation.
Sound tourism legislation is the legal premise and guarantee for developing tourism resources, establishing and developing tourism healthily. Accelerating tourism legislation is an objective need to cultivate and standardize the order of the tourism market and meet and integrate China's entry into the World Trade Organization. This is also an important content and step to establish China's tourism legal system. In many countries with developed tourism and perfect legal system, tourism law has formed a relatively complete system and become an important part of the national legal system. Although China has established a basic legal framework system of socialist market economy based on the Constitution and focusing on departmental law, from the perspective of departmental law, there is still a serious lag in China's tourism law. This lag has brought adverse effects on the development of tourism, and even some enterprises, in order to make money and under the guise of developing tourism resources, have come up with projects that destroy the environment and waste resources, disrupting the tourism market and infringing on the legitimate rights and interests of tourists, which makes the sustainable development of China's tourism industry and the establishment of tourism environment face severe challenges. This lag is mainly manifested in:
First, there is a gap between the basic tourism law and the separate tourism law. The tourism basic law belongs to the "constitution" in China's tourism legal system, and it is the source and basis of all kinds of tourism legislation at all levels. The position and function of the Basic Law of Tourism are not only of great significance to the establishment and development of the tourism legal system, but also of normative and guiding significance to the overall development of China's tourism industry. However, since the founding of People's Republic of China (PRC), we have not yet formulated a comprehensive and systematic basic law or a separate tourism law. Since the Ninth National People's Congress, some people have suggested that the state should make the formulation and promulgation of the tourism law the top priority of the current tourism development work, and organize special forces to speed up the legal construction of the tourism industry [1]. In fact, the absence of the tourism basic law makes the whole China tourism legal system construction in a state of "leaderless", and also makes the local tourism legislative activities lack legislative basis and principles to follow. This situation is also one of the important reasons for the disorder of the current tourism market.
Second, the number of national tourism legislation is small, the level is low, and the tourism legal system is very incomplete. After the reform and opening up, China attaches great importance to the construction of the legal system, but so far there is no law specifically regulating tourism relations. There are only three administrative laws and regulations that regulate tourism relations in the State Council [2], and only six tourism laws and regulations promulgated by the National Tourism Administration. Generally speaking, the current laws and regulations do not fundamentally stipulate the principles and measures for the development of tourism in the country at the legislative level, nor do they effectively restrict and adjust the relations between all aspects involved in tourism. Therefore, in China's tourism legal system, laws, administrative regulations and departmental rules, as social public goods, are in a serious shortage and are in a relatively low position in the legislative level. Some administrative regulations and departmental rules have outdated legislative ideas, simple contents and lack of operability.
Third, local tourism legislation is fragmented and lacks unity and coordination. In recent years, in order to realize and guarantee the pillar position of tourism in local industries, some places have successively promulgated local tourism laws and regulations. However, due to the different levels of market economy and tourism development in different places, the legislative levels of tourism laws and regulations in these places are uneven, with different contents, and some of them are in conflict with the national policy orientation. At the same time, because its scope of application is limited to administrative regions, it is impossible to integrate the tourism resources of the whole western region, coordinate the interests of various regions, and realize inter-provincial and inter-regional tourism cooperation.
The principle of jurisprudence tells us that the operation and function of law depends not only on a law or a local legislation, but also on a series of laws, regulations and rules with different categories, different levels and reasonable and orderly structure.
Tourism legislation should also be multi-level and all-round development. To strengthen and improve tourism legislation, we must first coordinate the legislative relationship between the two levels. National legislation should precede local legislation, and it should be able to standardize and guide local legislation on a macro level; Local legislation should be coordinated with national legislation to increase the adaptability of national legislation at the local level and improve the operability of national legislation; It is necessary to mobilize the enthusiasm of "two levels" legislation, and give full play to the functions and roles of national legislation and local legislation in regulating, maintaining and guiding the development and protection of tourism resources, establishing tourism industry, maintaining the order of tourism market, and establishing and operating tourism supervision system.
Secondly, we should speed up the process of national tourism legislation. National legislation involves the following levels of laws and regulations: First, laws to improve the tourism environment. The focus of such national laws is to solve the legal environment problem of tourism development. The main laws involved are company law, anti-unfair competition law, price law, insurance law, food hygiene and safety law, etc. These laws play a very important role in the macro-environment of tourism development. These laws have been formulated and now need to be revised and improved step by step. The second is to speed up the formulation of the tourism law. Tourism law is a comprehensive substantive law and departmental law to regulate the development of tourism. At the same time, this law, as the "Constitution" to regulate tourism, should also provide legislative basis and guidance for separate tourism laws, the State Council tourism administrative regulations and local tourism regulations. Therefore, tourism law plays a decisive role in the establishment and development of tourism legal system. According to NPC deputies' suggestions, the contents of the tourism law should focus on: "clarifying the position of tourism in national economic and social development, determining the principles and measures of national tourism development, establishing a system for rational development and scientific utilization of tourism resources and protecting the environment, and stipulating the protection of tourists' rights and interests" [3]. The third is to improve the tourism administrative law. This is a tourism administrative regulation formulated and promulgated by the State Council, which usually appears in the form of "regulations". The contents of the State Council's tourism laws and regulations are generally operational, and the procedures for formulating them are not as complicated as those for formulating tourism laws. At present, there are mainly Regulations on the Administration of Travel Agencies, Regulations on the Administration of Tour Guides and Regulations on the Administration of Scenic Spots. There are also some administrative regulations related to tourism, such as taxation, entry and exit management, passenger transport damage compensation, etc. However, these administrative regulations are not promulgated specifically for the development of tourism, and their application has certain limitations, and some of them are still uncoordinated and need to be further improved and revised. Compared with other departmental laws, the types and quantity of tourism administrative regulations are far from enough, which is not suitable for big tourist countries. Formulate and promulgate administrative regulations such as Regulations on the Development and Protection of Tourism Resources, Regulations on the Protection of Passengers' Rights and Interests, Regulations on the Management of Tourist Hotels, Regulations on Tourism Safety and Regulations on Tourism Insurance as soon as possible. The fourth is to do a good job in supporting departmental regulations. This is a variety of industry norms formulated by the National Tourism Administration alone or jointly with other departments in the State Council to adjust specific tourism relations. There are nearly 20 departmental regulations, including 13 promulgated by the National Tourism Administration. These departmental regulations are the norms followed by China's tourism industry at present, including some specific regulations and technical standards, and are the main norms for adjusting the national tourism work. Such tourism laws and regulations need to be further cleaned up, supplemented and revised.
Thirdly, the focus of local legislation is to formulate and promulgate local regulations on tourism, regulations on the protection of tourism resources, regulations on the supervision of tourism market behavior and regulations on the protection of tourists' interests [4], to refine the pertinence and operability of legislation and expand the spatial scope of local tourism legislation; Pay attention to turning mature administrative regulations promulgated by the government into stable local regulations in time. This can not only improve local legislation, but also accumulate rich local legislative experience for the formulation and promulgation of the basic tourism law.