机票“超售”中的经营者义务与消费者权益保护

发布时间：2019-08-04 08:43

【摘要】：机票"超售"自引入我国航空业以来,相应配套制度的不到位致使很多问题没有得到应有的规范。航空客运合同应被认为属消费者合同的一种,优先适用《消费者权益保护法》、《合同法》来处理争议纠纷。针对《旅客、行李运输总条件》等格式条款,航空公司未对旅客履行提示、说明义务的,不能订入航空客运合同;由于航空客运合同面向对象广泛且数量庞大,不能如一般消费者合同那样一一提示与告知,但应以广播、张贴、牌示、放映字幕、特殊字体等显著方式公告格式条款并能为旅客所知晓的,可以认为航空公司尽到了提示义务。在"超售"事实的告知义务方面,亦应采与格式条款类似的告知方式履行告知义务,否则应承担相应的缔约过失责任。旅客在办理登机手续时才得知机票超售的事实,乃航空公司告知义务履行方式不当,不应认定为对旅客实施了欺诈行为,不应有惩罚性赔偿之适用。此外,因超售拒载的延误赔偿应有相对确定的赔偿标准,可借鉴美国的作法,以实际损失为主、以延误时间为次要标准确立迟延履行的赔偿金额。
[Abstract]:Since the introduction of ticket oversale into China's aviation industry, the corresponding supporting system is not in place, resulting in many problems have not been properly standardized. Air passenger transport contract should be regarded as a kind of consumer contract, and priority should be given to the Application of Consumer Rights and interests Protection Law and contract Law to deal with disputes. If the airline fails to perform the instructions and state its obligations to the passengers, it shall not be able to enter into the air passenger transport contract if it fails to perform the instructions and state its obligations to the passengers in accordance with the general conditions of passenger and baggage transport. Because the air passenger transport contract is widely object-oriented and the quantity is large, it can not be prompted and informed one by one as in the general consumer contract, but the format terms should be announced by broadcast, post, sign, subtitle, special font and so on, and can be regarded as fulfilling the prompt obligation by the airline. In the aspect of the obligation to inform the facts of "oversale", the notification obligation should also be carried out in a manner similar to that in the format clause, otherwise the corresponding liability for contracting negligence should be borne. The fact that the passenger only learned of the oversale of the ticket at the time of check-in is that the airline informed that the obligation was performed improperly and should not be deemed to have committed fraud against the passenger and should not be subject to punitive damages. In addition, the compensation for delay due to oversale should be relatively determined, which can be used for reference by the United States, taking the actual loss as the main and the delay time as the secondary standard to establish the amount of compensation for the delay.
【作者单位】：中国政法大学民商经济法学院;
【分类号】：D923.8

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