On April 20, one Chinese female tourist was raped when following the touring party of NANHUTRAVEL to have a holiday in Bali. The suspect is the coach of the aquatic sport that the female tourist participated in, who had admitted the corpus delicti. This case will be subscribed to the local procuratorate and court for prosecution and trial according to judicial procedure. NANHUTRAVEL claimed that the day was free travel and it was the tourists’ own requirements rather than the tour guide’s. The victim’s lawyer claimed that the travel agency should undertake the due responsibilities because it shouldn’t arrange free travel if it can not guarantee tourists’ safety.
After the case happened, many netizen complain that Indonesia is unsafe all the time and some netizen are puzzled about the lawyer’s statement.
So what’s the legislation in this aspect?
Article 37 of the tort liability law stipulates that, the manager of the public place such as hotel, market, bank, station, entertainment venues and so on, as well as the organizer of the activity of a mass character should undertake responsibility for security, and the ways of assuming responsibility are shown in the below pictures.
At the same time, the article 7 of the stipulation which is issued by the Supreme People’s Court and about application of law when hearing the cases of tourism disputes, specially stipulates the manner in which the runners of travel agency and travel subsidiary assume obligations, which is as shown above. The article 8 stipulates that the runners of travel agent and the travel subsidiary should assume liabilities for not informing or alerting the tourists to the tourist projects that may endanger tourists’ personal safety and property safety, causing personal or property damage.
Thus, the key of this case is to determine whether the travel agency has undertaken responsibility for security as well as informing and alerting the tourists or has not done. Most netizen support the NANHUTRAVEL, thinking the travel agency shouldn’t undertake responsibility for the female tourist. After all, travel agency can’t offer bodyguards to every tourist during the free travel period. In this case, the female tourist chose to participate in aquatic sports during the free travel period. According to rational thinking of normal person, travel agency would not and did not need to inform the female tourist of paying attention to avoid being sexual assault by coach in advance. But by studying the judgement documents on the China Judgments Online, we can find that judges are strict in determining whether travel agency has fulfilled the obligations for safety guarantee, warning and notification, i.e. that judges prefer to require travel agency to undertake the due complementary responsibilities.
The case between Zhejiang Feiyang International Tourism Group Co., Ltd. and Lili Zhong:
The case number: (2015) Yong Hai Min Chu No.1100
The judge thinks that the contract between accuser and defendant is valid so the runners of travel agency should undertake personal safety guarantee responsibility for those tourists who participated in the tourist activities they hold. If the tourist is in fault, the civil responsibilities of the travel agency runner can be diminished accordingly. According to the facts, the accuser enjoyed scenery while walking in a poor tourist environment, showing that she failed to pay adequate attention to her own safety. After that, the accuser didn’t accept others’ reasonable advice and participated in the following activities, which made it possible to enlarge the existing damage. But the safety tips that the defendant gave to accuser is too broad because of the poor and crowded tourist environment, i.e. that the defendant couldn’t prove that it surely has fulfilled safety tips responsibilities for each tourist including the accuser. To sum up, aiming at the damage the accuser suffered in the travel activity, the accuser should bear more civil responsibilities owing to her greater fault so the defendant undertakes lesser responsibilities.
The case between Shen and Zhejiang Tourism Group Co., Ltd.:
The case number: (2015) Yong Hai Min Chu No. 687
The judge thinks that, the guide of the travel agency warned Shen in advance, but he didn’t explain and warn Shen further as well as take care of Shen after Shen chose to continue climbing the mountain. Finally, Shen fell and hurt himself because of avoiding children. The travel agency should undertake 60 percentage of responsibilities. Shen, as a person of full age and capacity, should predict the risks during the travel but he didn’t pay adequate attention to his own safety so that he should undertake 40 percentage of responsibilities.
As we can see, judges prefer to determine that travel agencies didn’t assume responsibilities for security as well as informing and warning, and determine the percentage of responsibilities that travel agency and victim should undertake respectively at judicial discretion. According to our country’s legislation, NANHUTRAVEL should undertake the due complementary responsibilities which can be diminished because the female tourist’s fault. The female tourist chose aquatic sports during free travel period so she should make reasonable predictions. Now because she didn’t do that, she is in fault for the damage she suffered.
At last, everyone must pay adequate attention to your own personal safety when taking a vacation!
