여행계약에 있어서 여행업자의 담보책임과 책임제한

Travel Agency’s Warranty Liabilities and Limitations on the Travel Contract - Focused on the Civil Law Revision -

Under a travel agreement, an agency provides comprehensive travel-related services, and the traveler is required to pay the agreed-upon fees in consideration of the services. Thus, the agreement is a bilateral contract entered for mutual consideration. Therefore, since the contract is to realize a complete travel, the agency shall bear the obligation to provide full warranty services in that regard. In practice, however, a travel contract incorporates therein a variety of distinct services, and the distinct components, combined spatio-temporarily and functionally with the entire body of services, constitute a perfect realization. Due to the nature, it remains always possible for a claim to arise. In addition, fulfillment of the terms and conditions of a travel agreement leaves no tangible results behind. Therefore, the warranty- and liability-related provisions in the Civil Law of Republic of Korea are rarely applicable to this particular type of contract. Aware of the nature, various issues are to be reviewed herein: the requirements for a warranty claim, and entailing rights to performance, reduction of contract amount, termination of contract, damages, and safe return to home, along with the duration of warranty. Usually, travel agencies incorporate immunity clauses in contract, exempting them from any liability claim for the damage or loss sustained by travelers, which are attributable to their negligence. The law generally allows such immunity clauses as limitation of liability clauses and exclusion clauses. In the same context, it is possible for parties to exclude application of the Civil Law, or to reduce or increase the warranty burden. But the clauses are unilaterally biased for the agencies. Thus, it is necessary to thoroughly review and control them. In this context, the two types of immunity clauses, or limitation and exclusion clauses, are reviewed herein, based on the travel-related provisions in the 2004 bill to amend the Civil Law and the relevant German Civil Law. The public policy underlying the proposed amendment stemmed from the need to directly regulate industry activities by setting forth the minimum legal norms in the code to cope with the ever-increasing number of Korean tourists and relevant legal disputes. Since the bill has not been turned into law, leaving the consumers without legal protection, it is necessary to continue studies on travel contract and to enact a relevant law regulating travel agencies.