Can the tour fare be refunded for overseas trips?

[Q&A Civil Code · Statement by Case]

●Keywords

Outbound tourism; force majeure

●Overview

　　At the beginning of the year, the new crown pneumonia epidemic was raging and had a great impact on all walks of life. The suspension of the catering industry puts greater pressure on hotel operators; transportation and logistics are blocked, and goods cannot be delivered to buyers on time; raw material factories are suspended and products cannot be produced and delivered as scheduled... The tourism industry has been particularly severely damaged, withdrawing from groups and refunds Travel disputes such as fees and unsubscription are frequent.

●Case

　　On December 30, 2019, Mr. Zhang's family signed an outbound travel contract with a travel agency. The itinerary was from January 25 to January 30, 2020, and a total of 38,800 yuan was paid. Due to the outbreak of the new crown pneumonia, a country of travel destination was diagnosed with the first case of new crown pneumonia on January 23, 2020. Mr. Zhang's family believes that the domestic epidemic has begun before the trip, and the local community has been closed. It is necessary to obtain documents and take body temperature to enter and exit. Considering that it is not safe to return to Congress from abroad, it is unsafe. They are not willing to take the risk of completing this trip and demand to terminate the contract.

　　The travel company refused to refund the entire tour fee. The defendant’s agent pointed out that outbound travel before January 27, 2020 was not prohibited, and there was no unfulfillment of the travel contract involved. In addition, the plaintiff’s scheduled flight took off and landed normally on January 26, 2020. Some other tourists in the same tour group have completed the itinerary and returned safely. The cancellation of the itinerary was unilaterally abandoned by the plaintiff.

●Law

If civil obligations cannot be performed due to force majeure, civil liabilities shall not be assumed. If the law provides otherwise, follow those provisions. Force majeure is an objective situation that cannot be foreseen, avoided, and cannot be overcome. (Article 180)

●Experts

Pi Jianlong (Director of Beijing Jintai Law Firm)

The epidemic is force majeure, travel agencies should refund corresponding expenses

　　"There are unpredictable circumstances", which is legally defined as "force majeure."

　　According to the provisions of the Civil Code, the criteria for determining force majeure are generally considered from the following aspects: First, force majeure is an objective situation that is unforeseeable. Unforeseen should be based on the foreseeability of ordinary people when the fact occurs to determine whether a certain phenomenon is predictable. . The second is that force majeure is inevitable and insurmountable. Inevitable and insurmountable indicates that the occurrence of the incident and the damage caused by the incident are inevitably beyond the control of the parties. The third is that force majeure is an objective situation, independent of human behavior.

　　The epidemic itself or the prevention and control measures taken by the government may cause one or both parties to the contract to be unable to continue to perform the contract, or only to be partially performed or delayed, resulting in the failure of the purpose of the contract. Therefore, the cancellation of travel due to the impact of the epidemic is a public health emergency and the travel contract cannot be performed, which should constitute force majeure.

　　As force majeure, the impact of the epidemic can be handled in two ways: one is to change the travel contract, and the other is to terminate the travel contract. Specific to this case, two issues need to be resolved: first, whether the travel contract signed between Mr. Zhang and the travel agency can be terminated; second, regarding the refund, whether the travel agency needs to refund all the expenses of Mr. Zhang’s family in full.

　　Since the domestic epidemic has already begun before going abroad, the country has implemented a series of epidemic prevention and control measures, which objectively caused the tourism contract to be unable to continue to be fulfilled. Even if other tourists travel normally, this does not require Mr. Zhang's family to travel rashly regardless of the great health risks. In fact, the General Office of the Ministry of Culture and Tourism also issued an emergency notice on January 26, 2020, clearly stipulating that from now on, national travel agencies and online travel companies will suspend the operation of group travel and "air ticket + hotel" travel products. The travel team that has traveled can continue to complete the itinerary as agreed in the contract. During the itinerary, pay close attention to the physical condition of tourists and take good health protection. Based on this, Mr. Zhang has the right to terminate the contract in accordance with the provisions of force majeure.

　　The Civil Code stipulates that if civil obligations cannot be performed due to force majeure, civil liabilities shall not be assumed. If the law provides otherwise, follow those provisions. Therefore, in general, if the contract is terminated due to the epidemic, consumers will not bear civil liability and have the right to request the travel agency to refund the expenses in full.

　　Since this case is a tourism contract dispute, it should be resolved in accordance with the relevant provisions of the Tourism Law. The law stipulates that events that cannot be avoided due to force majeure or the travel agency or the performance assistant has performed reasonable care obligations that affect the travel itinerary, in the case of the termination of the contract, the group agency shall deduct the payment and the amount paid to the local agency or the performance assistant After the non-refundable fee, the balance will be returned to the tourist; if the contract is changed, the increased cost will be borne by the tourist, and the reduced cost will be returned to the tourist. Therefore, in this case, the travel agency should return the balance to Mr. Zhang's family after deducting the non-refundable expenses that have been paid to the local reception or performance assistant.

(Interview by our reporter Jin Hao)