The responsibility of the third party involved in infringement caused by passengers' injuries abroad

Plaintiff: Sun

Defendant: travel agency

01 Basic Case

On September 14, 2016, Sun and the travel agency signed the "Team Outbound Tourism Contract", which agreed to travel overseas from September 23 to September 30, 2016. On September 28, 2016, Sun was sent to a local hospital abroad due to traffic accidents during the travel accident and damage to the brain stem. The neurotic recovery room was performed in the hospital for neurotic symptoms. Regarding the responsibility of the traffic accident, the appeal decision made by the overseas courts also sentenced him to pay a compensation for the compensation of Sun in addition to the free sentence of the driver. The verdict has now taken effect, and the compensation has been paid to the local court, but Sun did not receive it.

After the incident, the travel agency immediately sent Sun to the hospital for rescue. The local partner sent a weekly transfer team and the tour guide to accompany the medical treatment to properly solve the series of problems such as family members, visas, legal consultation, and return to China. Part of the accommodation costs during the period. On November 3, travel agencies arranged insurance companies to send Sun to return to China. Sun now sued the travel agency to compensate for related losses.

02 Case focus

Should passengers be responsible for travel agencies abroad due to third -person infringement? What kind of responsibility?

03 referee

The court considers:

1. When Sun encountered a traffic accident, his team leader agreed to go shopping. At that time, not only Sun, but also other tourists who crossed the road, but only Sun was injured. Therefore, from the cause of the accident, the department of Sun was injured together in an unpredictable and unavoidable accident during the arrangement of the event during the event. From the car accident and rescue pass from the travel agency, and the statement of the two parties can be determined that the travel agency has made the necessary security reminder to tourists including Sun before arranging the event. Including contact with medical claims, arranging insurance claims, assisting family members to visit overseas visits, etc. Even in addition to rescue, travel agencies have also started from the perspective of humanitarianism to help Sun's family members handle illegal retention of overseas and provide Sun and accommodation services for Sunmore for a certain period of time. Therefore, when the travel agency has fulfilled the necessary prompts and rescue obligations to Sun, Sun asked the travel agency to claim the corresponding compensation liability for the damage during his own arrangement of the event, and lacks facts and legal basis.

2. After the incident, Sun had filed a lawsuit against the relevant perpetrators abroad. Although the referee had not yet been recognized by the relevant domestic judicial procedures, Sun Mou said that the compensation had been paid to the local court during the trial, but he had not yet gone yet, but he has not yet gone yet. receive. Therefore, from the perspective of the liability for infringement compensation, in the case of the damage system caused by the infringement of the third party, the manager or organizer will only bear the corresponding supplementary responsibilities without the obligations of the security guarantee, and and and the The scope of supplementary liability is limited to the scope that can prevent or stop damage. There is no evidence to prove that travel agencies have faults or faults of the occurrence of the accident. Therefore, in this case, even if the travel agency is required to bear the responsibility for infringement supplementation, it lacks legal basis. In summary, all Sun's litigation request was rejected.

04 Judge's post -language

In this case, when a passenger is injured abroad, the travel agency shall bear the case of direct infringement liability or supplementary responsibility. It is a dispute caused by the application of supplementary liability and the border between security guarantee obligations. During the trial of this case, Sun only clarified Article 7 of the legal basis for the legal basis for tourism disputes. However, Article 7, paragraph 1, is completely different from the safety guarantee obligations corresponding to the second paragraph. The former is the responsibility of direct infringement, and the latter is supplementary responsibility. Application for different terms will inevitably lead to different referee ideas and referee results. The identification of supplementary responsibilities and the distribution of liability for proof have always been a difficult issue in the field of civil trial. It can be considered in combination with the following factors:

1. The issue of the complaint of the default and the deficiency of the infringement

Supplementary liability is the content of the infringement liability law. In the contract and the contract, a clear agreement on whether the liability for breach of contract and whether there is a specific situation stipulated in the contract. That is to say, to determine whether the plaintiff's claimed liability claimed by the plaintiff should be established in accordance with the contract and the relevant provisions of the contract law.

Second, the way third person involves infringement

The way the third person intervene in infringement determines the size of the person who supplements the person's attention and the boundaries of security guarantee obligations. Therefore, in the process of reviewing and judging whether the obligations of the security guarantee should bear supplementary responsibility, whether the infringement of the third party should be reviewed whether the third party's infringement behavior is predictable, avoided, and controllable Essence Generally speaking, the predictability of the third -party infringement behavior is proportional to the scope of the obligation of the person responsible for a certain extent, and the smaller the foreseeableness, the lower the predictability, the lower the obligations; In this case, there were six or seven people who passed the road with Sun, but in the end, only Sun had encountered a traffic accident, and Sun himself did not have a violation of traffic rules. Therefore, it is difficult for us to blame travel agencies to have a high degree of attention obligations in this way.

3. Whether there are faults in the supplementary responsible

From the perspective of legislative purposes, the reason why the responsible person must assume an intermediate responsibility for the infringement of the third party is that it is most likely to prevent it as a manager, operator or event organizer in public places. The occurrence of danger is also the most capable of adopting emergency rescue measures or loss reduction measures after the danger. Therefore, whether or not to do "can do" is an important factor in considering whether the person responsible should be supplemented. Fourth, the distribution rules for proof liability

In the case involved in supplementary liability, whether the negligence is negligent, in principle, the plaintiff shall be liable for the plaintiff who request damage compensation. Fa -saying has a cloud: "The proof is where the evidence is, the losing the lawsuit." But based on the special nature of the supplementary responsibility department as infringement, the content of the proof is really difficult for the plaintiff. Therefore, from the perspective of equality in the substantive sense, the responsibility of the plaintiff can be eased through a certain method. For example, if the plaintiff has submitted preliminary evidence or the court can determine the existence of the fact that the facts have been presented in accordance with the fact that the facts have been confronted, the supplementary responsible person shall submit a counter -certificate to prove that it has fulfilled the attention of the good manager.

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