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This chapter addresses the ambiguous definitions of ‘consumer’ and ‘consumer contract’ and their implications for tourists in cross-border travel scenarios. It emphasizes the need for clearer legal classifications between different types of contracts, such as distinguishing between service and package travel contracts, and how these distinctions impact the application of consumer protection laws. Current case law shows that consumer choice of law rules are not applied to package travel contracts with foreign elements; instead, general contractual rules, particularly Article 41, are overused to determine the applicable law. The law governing these contracts is often based on party autonomy, closest connection, and characteristic performance principles stated in Article 41. Based on the doctrines of travel vulnerability and information asymmetry, this chapter argues that package travel and timeshare contracts should be explicitly included within the material scope of Article 42 of the Chinese Conflict of Laws Act and protected as consumer contracts. This can be done by amending the current provision to explicitly include package travel and timeshare contracts or through judicial interpretation by the Supreme People’s Court. Additionally, a clear legal definition of timeshare contracts should be established in Chinese law, possibly within the Tourism Law, Consumer Protection Law, or Civil Code. Regarding the conditions for applying consumer choice of law rules, a written contract should generally be required, but a de facto contract may suffice in some cases. The other party to a consumer contract can be either a legal or natural person. Chinese courts should apply uniform standards when determining foreign-related contracts, especially when performance occurs in a foreign country. Finally, with the development of new personalized advertising strategies in tourism industry, such as recommendations system, Generative AI, social media, and influencer marketing, the Supreme People’s Court could issue judicial interpretations to clarify what constitutes the targeting test.

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Protecting Package Travel Tourists and Timeshare Tourists as Consumers in China

  • 章节

  • 发表日期：

    2025年

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  • Zhen Chen

摘要

This chapter addresses the ambiguous definitions of ‘consumer’ and ‘consumer contract’ and their implications for tourists in cross-border travel scenarios. It emphasizes the need for clearer legal classifications between different types of contracts, such as distinguishing between service and package travel contracts, and how these distinctions impact the application of consumer protection laws. Current case law shows that consumer choice of law rules are not applied to package travel contracts with foreign elements; instead, general contractual rules, particularly Article 41, are overused to determine the applicable law. The law governing these contracts is often based on party autonomy, closest connection, and characteristic performance principles stated in Article 41. Based on the doctrines of travel vulnerability and information asymmetry, this chapter argues that package travel and timeshare contracts should be explicitly included within the material scope of Article 42 of the Chinese Conflict of Laws Act and protected as consumer contracts. This can be done by amending the current provision to explicitly include package travel and timeshare contracts or through judicial interpretation by the Supreme People’s Court. Additionally, a clear legal definition of timeshare contracts should be established in Chinese law, possibly within the Tourism Law, Consumer Protection Law, or Civil Code. Regarding the conditions for applying consumer choice of law rules, a written contract should generally be required, but a de facto contract may suffice in some cases. The other party to a consumer contract can be either a legal or natural person. Chinese courts should apply uniform standards when determining foreign-related contracts, especially when performance occurs in a foreign country. Finally, with the development of new personalized advertising strategies in tourism industry, such as recommendations system, Generative AI, social media, and influencer marketing, the Supreme People’s Court could issue judicial interpretations to clarify what constitutes the targeting test.