I. Definition of the scope of free practice
The Pilot Management Measures for Free Practice of Tour Guides (Trial) clarifies that the service of tour guides is limited to a single explanation and guidance, which is different from the three major responsibilities of traditional package tour guides: guidance, explanation and tourism services. Article 18 of the Administrative Measures stipulates: "Freelance tour guides shall not engage in any business other than explanation and guidance". It is forbidden here, and the service scope of freelance tour guides is clearly defined. In other words, according to the management regulations, freelance tour guides can only engage in explanation and tour guide business, and cannot engage in any "tourism-related business". That is, even if tourists have needs, they can't provide them with any travel services except explanations and guides, such as booking, consulting, planning and living services.
Recently, many industry experts and scholars have been discussing the formulation of the Service Standard for Freelance Tour Guides, aiming at providing guidance for the code of conduct of freelancer tour guides. In the discussion, they have been arguing about the details of what freelance guides can do besides explaining and guiding, and how to do it. Many people think that based on the necessary caution of freelancer pilot, tour guides should be forbidden to do anything except explanation and guidance, such as assistance services and auxiliary services, so as to avoid the possibility of freelancer tour guides becoming "micro-travel agencies", even if they are overkill. This view has been recognized by many travel agencies and even tourism authorities, but the author thinks this view remains to be discussed.
Second, do tour guides need tourism assistance services in their freelance practice?
1. Query and worry
Many travel agencies generally question and worry that after the tour guide is free to practice, the content of the tour guide covers all the elements and links of tourism, and the tour guide may take over the services of the travel agency and become a "micro-travel agency", which will inevitably squeeze the living space of traditional travel agencies. It has to be said that this sensitive issue can be seen from the content change and official release of the draft of the "Pilot Management Measures for Free Practice of Tour Guides (Trial)". For example, the prohibition that "freelance tour guides are not allowed to engage in business other than explanation and guidance" was added in the release draft, and the stipulation that "freelance tour guides should generally provide accommodation and shopping for more than three meals at the explicit request of tourists" was cancelled. It can be seen that the main purpose of making rules is to prevent tour guides from engaging in travel agency business and actively prohibit tour guides from making illegal profits from eating, living and buying.
2. Understanding of relevant provisions of management measures
Article 18 of the pilot management measures for the free practice of tour guides (for Trial Implementation) is very strict literally. "Freelance tour guides can only be engaged in explaining and guiding business". Of course, you can't engage in booking, consulting, shopping guide, agency and other businesses. Then, from another perspective, can a freelance tour guide engage in other "services" besides explaining and guiding?
It is generally understood that the word "business" refers to business-related activities or transactions that are carried out or need to be handled in various industries, usually referring to sales transactions. The ultimate goal of "management" is to sell products or services, which is paid for and for profit. And "service" generally refers to paid or unpaid activities that work for others and benefit others. The concepts of "business" and "service" are not the same. Both "businesses" can be "services", but "services" are not necessarily "businesses".
Item (1) of Article 24 of the Measures for the Pilot Management of Free Practice of Tour Guides: Those who engage in travel agency business beyond the scope of personal explanation and tour guide services shall be punished in accordance with Article 95 of the Tourism Law; Article 24 (5) Those who recommend restaurants, accommodation and shopping places without legal qualifications to tourists shall be punished in accordance with the provisions of Article 24 of the Regulations on the Administration of Tour Guides. This regulation explicitly prohibits and punishes the profit-making behavior of tour guides in the operation of travel agency business rather than the free service behavior, and explicitly prohibits and punishes the recommendation of restaurants, accommodation and shopping places without legal qualifications, rather than the recommendation of themselves or legally qualified tourism service units. So we can know that tour guides can provide non-profit free services according to law, so can the scope of tour guides go beyond the two basic contents of explanation and guidance?
3. Accompanying obligations in the legal relationship of tour guides' free practice
The legal relationship between tour guides and tourists is confirmed by signing an agreement (or electronic contract), and the accompanying obligations in the process of contract performance will be essential.
According to the Contract Law, collateral obligation refers to the obligation of doing or not doing according to the nature, purpose and trading habits of the contract in order to ensure the realization of the purpose of the contract and safeguard the interests of the other party. Generally speaking, there are notification obligations, assistance obligations and care obligations, confidentiality obligations, impairment obligations and hedging obligations. In short, in the process of performing the service contract, in order to achieve the purpose of the contract and safeguard the interests of tourists, the tour guide should assist or provide services for the needs that are not agreed or explained in the contract put forward by tourists. In the scene of free practice of tour guides, if tourists consult the local customs and scenic spots, ask the tour guides to arrange plans for them, or ask the tour guides to help them book some tourist links, or ask the tour guides to recommend beautiful food and entertainment places for them, then the tour guides can't flatly refuse or refuse, otherwise it will undermine the realization of the purpose of the contract and violate the basic spirit of the contract.
The collateral obligation cannot be specified in the contract signed between tourists and tour guides, but when the tourism administrative department takes the lead in formulating rules, it should give the tour guide a relatively clear and standardized behavior guide, and should clarify the basic concept and behavior boundary of collateral obligation (tourism assistance and assistance obligation) in it. We can't hope that the tour guide can give more help and help to the tourists by relying on his own morality and conscience besides explaining and guiding when fulfilling the service contract with the tourists. If there is no service standard and no behavior guide, is it legal or proper for tour guides to answer tourists with "no regulations, no requirements, only prohibition" when they ask for help? In other extreme cases, if the tour guide is indifferent to the personal injury or property loss of tourists, is it because it is not their obligation and responsibility or scope of work?
4. Auxiliary tourism service is the need of the market.
The purpose of free practice of tour guides is to meet the needs of the development of the tourism market under the new situation and provide high-quality personalized and characteristic services for tourists. If tourists want to taste local food, want to know which hotel is more in line with their own requirements, want to contact the car, want to buy tickets, want to buy local specialties and so on. They may need the advice of a tour guide or even the assistance of a tour guide. In the eyes of tourists, it is convenient to ask a tour guide, which saves money and worry. Freelance guides provide travel assistance and auxiliary services, which is the choice of the market and the needs of tourists.
From the tourist's point of view, it is necessary for freelance tour guides to provide related travel assistance services other than explanations and tour guides, otherwise the tour guides will only be interpreters or tour guides. If tourists want a tour guide to help them make some necessary travel arrangements and recommend local food, tourist attractions and even shopping malls, the tour guide will shirk it for fear of breaking the law, which will easily make the relationship between tourists and tour guides antagonistic and have a poor sense of consumption experience. Therefore, it is forbidden for freelance tour guides to explain or act outside the tour guide, or the boundary and behavior of the incidental obligations of freelance practice are not clearly defined, which does not conform to the basic reality of practical operation and is not grounded.
Third, suggestions on standardizing the free practice of tour guides.
First, formulate detailed requirements for the free practice of tour guides. The free practice of tour guides requires more management experience in practice, and the early code of conduct or practice guidance is essential. On the basis of previous tour guide service standards, we should highlight the characteristics of free practice, strengthen the safety protection of tour guides in free practice, and highlight the business content and boundary setting of explanations and tour guides. Tour guides should be prohibited from becoming "micro-travel agencies", and reasonable and necessary travel assistance services should be standardized and required. We should not simply and rudely ban them completely, because we are afraid of blurring the boundaries. Actually, it's useless to cover your ears.
The form of tourism assistance and auxiliary services of freelance tour guides is not important, but its purpose is important, that is, whether the tour guide recommends legally qualified restaurants, accommodation, shopping and entertainment places for personal gain, and there is no essential difference between recommending one and recommending ten. The key is whether the tour guide aims at profit and whether the tour guide illegally seeks personal gain and other gray income. In Article 24 of the Pilot Management Measures for Free Practice of Tour Guides (Trial), there is a deficiency in the statement that tour guides should be punished for recommending restaurants, accommodation and shopping places that do not have legal qualifications to tourists. The Code of Conduct for Free Practice of Tour Guides should be supplemented with a description of the limited purpose of tour guides in tourism assistance or auxiliary services.
Secondly, trace preservation during practice. The initiative or passivity of related assistance services of tour guides in their freelance practice is also a basis for determining their legitimacy. Therefore, it is necessary for tour guides to provide relevant non-profit help or auxiliary services only when tourists make clear requirements. This clear demand is best put forward in an explicit way, which can become legal and effective evidence in the event of a dispute, including but not limited to written applications and explanations, and electronic records such as WeChat, MMS, SMS and email. Tour guides should consciously pay attention to the retention of service traces and the fixation of relevant evidence. The difference between freelance tour guides and tour guides appointed by travel agencies in traditional package tours in terms of service object, service scope and service space determines that freelance tour guides will face a more private, personalized and hidden practice environment, and put forward higher requirements for self-proof and burden of proof when disputes and disputes occur. Tour guides must adapt to this change, master basic legal knowledge and evidence fixation skills, so as to ensure that when disputes and contradictions arise, tour guides can protect themselves to the greatest extent.
Finally, the scope of recommendation and introduction of tourism-related business institutions or places is delineated. In a sense, whether active or passive, it is almost inevitable that the tour guide recommends food, shelter and transportation. Are all these business premises legal and qualified? Does the legal business place give illegal commissions and kickbacks to tour guides? It is difficult to operate in practice. It is suggested that after careful investigation and selection, the online or offline free travel operation platform should recommend and introduce all kinds of local tourism-related enterprises and business places with local characteristics, which are formal and law-abiding, and remind and suggest that tourists can choose within the recommended scope on the operation platform. This can greatly reduce the illegal activities of individual freelance tour guides in the name of "tour guides", and at the same time create new business opportunities and better market-oriented operations for the operating platform.
The free practice of tour guides will inevitably make tour guides and travel agencies face new choices, bring touches and pains to the traditional tourism industry, and promote the standardized development and progress of the industry.