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Procedures of Shanghai Municipality on the Administration of Travel Agencies
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| (Promulgated by the People's Government of Shanghai Municipality on December 6, 1999, Decree No. 77) Chapter I General Provisions Article 1 Purpose and Basis In order to strengthen the administration of travel agencies in this municipality, protect the lawful rights and interests of the tourists and the travel agencies, maintain the order of the tourism market and help the development of the travel industry in this Municipality, these Procedures are formulated in accordance with the Regulations on the Administration of Travel Agencies (hereinafter referred to as The Regulations) and other relevant the Regulations and in light of the actual conditions of this Municipality. Article 2 Definition of Travel Agency Travel agency referred to in these Procedures is defined as a business enterprise that attracts and receives tourists and arranges for their transportation, sight-seeing, accommodations, meals, shopping and entertainment, and provides tourist guiding service and other related services for the purpose of making profits, including international travel agencies and domestic travel agencies. Article 3 Scope of Application These Procedures shall apply to the establishment, business management and administrative activities of travel agencies in this Municipality. Article 4 Administrative Departments The Shanghai Municipal Tourism Administrative Board (hereinafter referred to as the Municipal Tourism Board) shall be responsible for the administration of all travel agencies in this Municipality. District/county tourism administrative departments shall, in accordance with their functions, be responsible for the administration of domestic travel agencies within their jurisdiction and work under the professional leadership of the Municipal Tourism Board. The relevant departments of the people's government at all levels shall, in accordance with their respective functions, help tourism administrative departments to do a good job in the administration of travel agencies. Article 5 Permit System This Municipality shall institute a permit system for the business of travel agencies. No unit or individual shall engage or engage in disguise in the business activities of travel agencies without permission of tourism administrative departments. Article 6 Business Principles Travel agencies shall follow the principles of voluntary participation, fairness and good faith and observe commercial ethics in their business activities. The lawful business activities travel agencies engage in shall be protected by the law. Article 7 Trade Association The association of travel agencies of this Municipality is a self-disciplined social organization that operates as a legal person for the protection of rights and interests of the travel agencies in accordance with laws. It works in accordance with laws, the Regulations and its charters, and accepts the guidance and supervision of the Municipal Tourism Board. Chapter II Permission for Establishment of Travel Agencies Article 8 Conditions for Establishment of International Travel Agencies To establish an international travel agency, the following conditions must be met: 1.Having a fixed business office and the necessary operation facilities; 2.Having the necessary administrative and business personnel, including at least one qualified business executive and no less than 3 department executives or executives in charge of professional affairs, professional finance and accounting personnel with a title of master accountant or above and 5 or more foreign languages tourist guides; and 3.Having registered capital of RMB 1.5 million at the minimum. Article 9 Conditions for Establishment of Domestic Travel Agencies To establish a domestic travel agency, the following conditions must be met: 1.Having a fixed business office and the necessary operation facilities; 2.Having the necessary administrative and business personnel, including at least one qualified business executive and one department executive or executive in charge of professional affairs, professional finance and accounting personnel with a title of assistant accountant or above and three or more tourist guides who speak standard mandarin; and 3.Having registered capital of no less than RMB 300,000. Article 10 Conditions for Establishment of Branch Travel Agencies A travel agency that receives tourists of more than 100,000 persons per year may set up branch agencies that have no legal person status and have their activities in the name of the travel agency that creates them. To set up branch agencies, the following conditions must be met: 1 Having a fixed business office and the necessary operation facilities; and 2 Having the necessary administrative and business personnel, including at least one qualified branch agency executive, professional finance and accounting personnel, and three or more foreign languages tourist guides if it engages in the international tourism or three or more tourist guides who speak standard mandarin if it engages in the domestic tourism. Article 11 Conditions for Establishment of Business Departments Travel agencies in this Municipality may set up branch business agencies that have no legal person status and have their business activities in the name of the travel agency that creates them. To apply for the establishment of branch business agencies, the following conditions must be met: 1.The travel agency that applies for the establishment of a branch business agency has been engaged in tourism for more than two years and has had no major accidents in tourist safety or quality during the two years before it submits the application; 2.Business revenues from tourism of the travel agency that applies for the establishment of a branch business agency and the number of tourists it receives and the tours it organizes per year meets the standards set by the Municipal Tourism Board; and 3.Having a fixed business office and the necessary operation facilities; 4.Having regular operation personnel, of which the business department executive must have acquired the qualification certificate required for department executives of the travel agency. For every business department engaged in the international tourism it creates, the travel agency shall increase its registered capital by RMB 200,000; and for every business department engaged in the domestic tourism it creates, the travel agency shall increase its registered capital by RMB 100,000. Article 12 Conditions for Establishment of Permanent Business Offices of Foreign Travel Agencies Foreign travel agencies may set up non-business permanent offices (hereinafter referred to as permanent offices of foreign travel agencies) in this Municipality to engage in some tourist activities like consulting, liaison, publicity, etc. To set up permanent offices in this Municipality, the foreign travel agency must meet the following conditions: 1.It has completed registration in accordance with the law in its own country; 2.It has good credit rating and formal membership in the association of travel agencies in its own country; and 3.It has engaged in travel business of sending tourists from its own country to China for more than two years and the number of tourists it sends to China per year is no less than 2,000. Article 13 Assessment of Qualifications Those who apply for the establishment of international travel agencies, domestic travel agencies, branch agencies of travel agency or branch business departments of travel agency shall have their qualifications assessed before submitting their applications. The assessment shall be organized by the association of travel agencies in this municipality and no fees shall be charged for the assessment. Article 14 Procedures for Examination and Approval Those who apply for the establishment of international travel agencies, domestic travel agencies or branch agencies of travel agency shall, in accordance with the law, apply to the administrative departments of industry and commerce for registration and obtain the business license within 60 days upon completing the formalities of examination and approval in accordance with the relevant regulations, paying a quality guarantee deposit and getting the business permit for travel agencies (hereinafter referred to as business permit). Application by a foreign travel agency to set up a permanent office in this Municipality shall be examined by the Municipal Tourism Board and then submitted to the competent tourism department of the State Council for approval. Applications by an international travel agency to set up a business department shall be submitted to the Municipal Tourism Board for examination and approval. Applications by a domestic travel agency to set up a business department shall be submitted for examination and approval to the district/county administrative department of tourism that had originally examined and approved its establishment. In case the business department is to be located outside the district/county where the travel agency is located, it shall request approval from the district/county administrative department of tourism that had examined and approved its establishment and then go to the tourism administrative department of the county/district where the business department is to be located for the formalities of examination and approval. For every business office approved to be established to engage in the international tourism, the travel agency that sets it up shall pay another RMB 150,000 of quality guarantee deposit to the Municipal Tourism Board . For that set up to engage in the domestic tourism, the travel agency that sets it up shall pay another RMB 40,000 of quality guarantee deposit to the administrative department of tourism that had examined and approved its establishment and then, within 60 days, go with the business permit issued by the administrative department of tourism to the administrative departments of industry and commerce for business registration. Article 15 Name of Travel Agencies The business name applied for and registered by a travel agency must contain the words "travel agency". Domestic travel agencies must not use names containing "international", "overseas" and so on that do not conform to their tourist business. Article 16 Alteration and Termination When a travel agency wants to alter its scope of business, it must go to the administrative departments of industry and commerce for alteration registration after obtaining approval and examination, in accordance with the provisions of these Procedures concerning application for the establishment of travel agencies, from the administrative department of tourism that had originally approved and examined its establishment. When a travel agency wants to change its name, legal representative or address, or to suspend or close its business, or its branch agency or business department wants to change its address or to suspend or close its business, it shall go to the administrative departments of industry and commerce for appropriate alteration registration or cancellation registration, and file a report for the record to the administrative department of tourism that had originally approved and examined its establishment. Article 17 Annual Examination The municipal or district/county administrative department of tourism shall conduct an examination of the travel agencies every year. Those who do not go through or fail to pass the annual examination shall not engage in business activities of tourism. The municipal or district/county administrative department of tourism shall publicize the results of the annual examination. Article 18 Travel Agencies with Chinese and Foreign Joint Investment Applications for setting up a travel agency with Chinese and foreign joint investments shall follow the relevant regulations of the competent administrative departments of tourism and foreign trade and economy of the State Council. Chapter III Business Management and Administration Article 19 Scope of Business Travel agencies shall have their business activities within the scope of business stipulated by the business permit and shall not overstep the limits. Article 20 System of Plain Marking Travel agencies shall place their business permit and business license in a conspicuous position of the business site. Prices of travel and related fees shall be plainly marked. Article 21 Contents of Quoted Prices in Tours Quoted prices of travel agencies includes all-including prices and half-including prices. When a travel agency makes a commitment to the service of all-including prices, the price shall include at least fees for transportation, accommodations, meals, tickets to tourist attractions and tourist guide services. When a travel agency makes a commitment to the service of half-including prices, the price shall include at least fees for transportation, accommodations, and tourist guide services. Article 22 Items of Tour Contracts When a travel agency makes tour arrangements for tourists, it shall sign a written tour contract with the tourists. As a rule, the tour contract includes the following items: 1.Name and address of the travel agency; 2.Total price of the tour; 3.Places of sight-seeing and itinerary; 4.Means of transportation, their classes, departure and arrival time of flight number train or bus ; 5.Class of hotel and type of hotel rooms; 6.Names of sights to visit and tickets; 7.Times of meals and their standards; 8.Types of entertainment and number of times to be entertained; 9.Tourist guide services; 10.Number of times of shopping and time length of shopping; 11.Conditions for terminating the contract; 12.Liabilities for breach of contract; 13.Other items deemed necessary by both parties to be included in the contract; and 14.Place and date of signing the contract. When a contract for overseas tours is signed, formalities and fees for getting the exit and entry visa shall also be included. In signing a contract with the tourist, the travel agency may refer to the sample copy of contract provided by the Municipal Tourism Board. Article 23 Performance of Travel Contract and Its Transference Having signed a contract with tourists, the travel agency shall render performance in accordance with its terms. The feedback questionnaire on service quality distributed to tourists and other similar written materials can not serve as a proof of performance. Before transferring a travel contract to other travel agencies, the travel agency must first obtain assent from the tourists and no extra charges shall be allowed. If a tourist is unable to go on the tour, he/she may let another person to perform the contract in his place. The tourist shall pay for the extra expenses incurred therefrom. If a tourist is unable to go on the tour and no other person may go in his place because of visa and other problems, the tourist shall be liable for the breach of the contract. Article 24 Requirements on the Travel Agency in Performance of Contract Having signed a contract with the tourists, the travel agency shall render service in accordance with the terms of the contract and shall not make unauthorized changes in the itinerary, omit or add items of sightseeing, charge extra expenses, or arrange other items of sightseeing and consumption not provided for in the contract. When making arrangement for other items of sightseeing not free of charge, the travel agency must first obtain assent from the tourists and produce service charge receipts. After a travel contract is signed, the travel agency shall not raise the total price of travel unilaterally unless the State makes changes in foreign currency exchange rates or in prices of transportation and the terms of contract provides for such raises. Article 25 Force Majeure If, after a contract is signed by the travel agency and the tourist, force majeure renders performance impossible, part or all of the obligations are exempted according by as the effect of the force majeure unless the law stipulates otherwise. Article 26 Breach of Contract Due to Inability to Perform In case a party to the contract is unable to perform, the breaching party shall inform the other party 3 days in advance in the case of domestic tours and 7 days in advance in the case of overseas tours. The parties to the contract may also provide for the time to inform the other party. As to the liabilities for the breach of the contract, the terms of the contract thereof shall be followed. If no provision is made thereof, the following standards shall be followed: 1.If the beaching party informs the other party within the time limit provided for by the contract, it shall pay a penalty of 5% of the total price; or 2.If the beaching party fails to inform the other party within the time limit provided for by the contract, it shall pay a penalty of 10% of the total price; If any losses result from the breach of the contract, the breaching party shall make compensations in accordance with the provisions of the relevant laws, decrees and the Regulations. Article 27 Forward Compensation` The travel agency shall be liable for the breach of the contract if it fails to offer transportation, accommodation, meals or other related services as provided for in the contract. In case the travel agency causes losses to the tourists, it shall pay the losses in accordance with the law. If the tourists suffer losses due to non-performance or partial performance of the contract by a third party, the travel agency shall make the compensation first. The travel agency shall be liable for damages in accordance with the Law of the People's Republic of China for Protection of the Rights and Interests of the Consumers if it commits fraudulence in providing services to the tourists. Article 28 Tourist Accident Insurance In organizing tours, the travel agency must take accident insurance policies for the tourists. The premiums to be paid for the insurance shall be included in the sale prices of the tours and shall not be charged from the tourists as an extra. Article 29 Tourist Safety In organizing tours, the travel agency shall protect the personal safety of the tourists. Circumstances that may endanger the safety of the tourists during the tour shall be explained to them in advance and an explicit warning be given thereof. The travel agency shall also take effective measures to prevent tourists from being endangered. When the tourist's personal safety is endangered, the personnel assigned by the travel agency to accompany the tourists shall take effective rescue measures and make timely reports to the travel agency that organized the tour. For overseas tours, the tour leader abroad shall at the same time report to Chinese embassies or consulates and Chinese organs of tourism stationed abroad. Article 30 Reporting System If a major accident involving tourist casualties and deaths occurs during the tour, the travel agency shall report it to relevant departments within 24 hours upon learning of the accident in accordance with the following provisions: 1.Shall an accident occur, the international travel agency shall report it to the Municipal Tourism Board; or 2.Shall an accident occur, the domestic travel agency shall report it to the district/county administrative department of tourism with which it has registered. Upon receiving the report, the district/county administrative department of tourism concerned shall report it to the Municipal Tourism Board immediately. Article 31 Requirements on the Hiring of Personnel Travel agencies shall sign a written contract with the business personnel it hires, which provides for the rights and interests of both parties. Without the authorization of the travel agencies they work for, the business personnel must not reveal or use or let others use their commercial secrets in their possession. Article 32 Tour Leader and Tourist Guide The tour leader and tourist guide hired by the travel agency shall hold the tour leader certificate and the tourist guide certificate respectively issued by the State or the Municipal Tourism Board. While working, the tour leader and the tourist guide shall wear their breast card and carry the tour leader certificate and the tourist guide certificate respectively. They shall follow strictly the schedule made by the travel agency in arranging travel and sightseeing for the tourists and shall not add or omit items of sightseeing or suspend guide service without authorization. Article 33 Tour Advertisements In putting up advertisements, the travel agency shall comply with the provisions of the relevant laws and the Regulations of the State and shall not engage in the publicity by false advertisements. The sale of services promoted by its advertisements must not go beyond the scope of its business. In putting up advertisements in the media of radio, films, television, newspapers magazines and so on, the travel agency shall clearly indicate its name and business license number. On sales advertisements on behalf of other travel agencies the name of the travel agencies being delegated shall, in addition, be clearly indicated. The making and publicizing of sales advertisements for Chinese citizens to travel abroad shall comply with relevant Regulations of the State. Article 34 Application for Special Tours To develop special risky tours such as exploration of dangerous places, hunting and floating, the travel agency shall apply to the Municipal Tourism Board for approval and examination in accordance with the relevant Regulations of the State. Article 35 Selection of Travel Agencies Abroad for Receiving Chinese Tourists When organizing tours abroad, the travel agency shall select legitimately registered travel agencies in the countries or regions concerned for receiving the tourists and sign a written contract with them. Article 36 Ban of Improper Competition and Restriction of Tips and Kickbacks Travel agencies shall not harm their competitors by adopting the following improper means to engage in its tourist business: 1.Faking the registered trademarks of other travel agencies; 2.Using the names of other travel agencies without authorization; 3.Defaming other travel agencies; 4.Authorizing units or individuals that are not travel agencies as agents for tourist business; or 5.Other acts that disturb the order of the tourism market. Business personnel of travel agencies shall not solicit tips from the tourists or accept kickbacks in private. Article 37 Means for Settling Disputes If the lawful rights and interests of the tourists are infringed upon or disputes arise between the tourists and the travel agency, settlement may be sought through the following means: 1.Consultation with the travel agency; 2.Requesting mediation by consumers' association; 3.Complaining to the administrative departments of tourism or the administrative departments of industry and commerce; or 4.Submitting the disputes to the arbitrating organization for arbitration or taking legal proceedings at the people's court. Article 38 Handling of Complaints Administrative departments of tourism shall, within 5 working days upon receiving complaints from the tourists, make a decision on whether to accept and deal with the complaints. If they decide to accept and deal with the complaints, they shall, within 45 days, make a decision on the settlement of the complaints and make a reply to the complainant. As to complaints that shall be handled by other administrative departments, they shall turn them over to the relevant departments within 5 working days upon receiving the complaints. Article 39 Use of the Quality Guarantee Deposit In any of the following circumstances where the tourists suffer losses, the administrative departments of tourism shall use the quality guarantee deposit paid by the travel agency to compensate the tourist first if, upon accepting the complaints, the administrative departments hold that compensations shall be made for the tourist but the travel agency refuses or is unable to make compensations: 1.The travel agency, due to its own faults, failed to meet the service standards set in the contract; 2.The travel agency failed to meet the service standards set by the State or by the trade; 3.The tourists suffer loss of travel expenses paid in advance when the travel agency goes bankrupt; or 4.Other circumstances specified by the tourism administrative department of the State Council. The quality guarantee deposit and the interests generated during the period when it is kept and managed by administrative departments of tourism belong to the travel agency. The administrative departments of tourism may, in accordance with the relevant regulations of the State, take a certain percentage from the interests as management fees. No units or individuals shall be allowed to use the quality guarantee deposit for other purposes. When disputes arise between the business department of a travel agency and the tourists and, in accordance with the provision of the preceding paragraph, compensation shall be made with the quality guarantee deposit first, the tourism administrative department of the district/county where the travel agency that created the business department is located, upon receiving notice of the tourism administrative department of the district/county where the business department is located to make compensation with the quality guarantee deposit, shall pay out the money in a timely manner. If disagreements arise on the use of the deposit to pay the compensation, they shall be submitted to the Municipal Tourism Board for arbitration. In case the administrative departments of tourism commit errors in using the quality guarantee deposit to make compensation, they shall be responsible for making compensation. Article 40 Statistical Reports Travel agencies shall, in accordance with the relevant the regulations of the tourism administrative department of the State Council, submit statistical reports in a timely manner. International travel agencies shall submit their statistical reports to the Municipal Tourism Board, and domestic travel agencies shall submit their statistical reports to their district/county administrative departments of tourism. No false data shall be allowed in the statistical reports. Article 41 Safekeeping of Files Business files of travel agencies shall be kept by a full-time employee whose job is to keep the files. Files of international tours shall be kept for at least 3 years and files of domestic tours shall be kept for at least 2 years. Article 42 Administration of Business Departments Travel agencies shall exercise unified administration over the personnel, finance, and organization of tours and itineraries of their business departments. Article 43 Supervision by the Association of Travel Agencies in This Municipality The association of travel agencies in this Municipality shall exercise supervision over the business activities, service quality and prices of travel agencies and report the results to the Municipal Tourism Board for the record. Chapter IV Legal Liability Article 44 Penalties by Administrative Departments of Tourism Acts in violation of these Procedures shall be penalized in accordance with the Regulations if there are penalty provisions thereof. Otherwise, the following provisions shall be followed in imposing penalties: 1.If the tour leader or tourist guide sent out by the travel agency fails to wear certificates in accordance with the Regulations while on tour, they shall be enjoined by the administrative departments of tourism to make rectification. Those who refuse to rectify shall be penalized by a fine of RMB 500 at the maximum and by a warning from the travel agency; 2..If employees of a travel agency solicit tips or accept kickbacks in private, they shall be enjoined by the administrative departments of tourism to make rectification and be penalized by a fine of RMB 1,000 to 30,000; or 3 If a travel agency hires persons without a tour leader certificate or a tourist guide certificate issued by the State or Municipal Tourism Board to act as a tour leader or tourist guide, or fails to honor commitments to all-including prices or half-including prices, it shall be given a warning by the administrative departments of tourism and be penalized by a fine of RMB 10,000 to 30,000 inclusive. If the acts in violation of the law by a travel agency warrant revocation of its business permit for domestic travel agency in accordance with the provisions of the Regulations, the penalty decision shall be made by the Municipal Tourism Board; if its acts warrant revocation of its business permit for international travel agency, the penalty decision shall be submitted by the Municipal Tourism Board to the tourism administrative department of the State Council for approval. Article 45 Penalties by Administrative Departments of Industry and Commerce Travel agencies that violate the laws, decrees and the Regulations on the administration of industry and commerce shall be punished by the administrative departments of industry and commerce in accordance with the law. When the business permit of a travel agency is revoked, the Municipal Tourism Board shall give notice to the administrative department of industry and commerce to revoke its business license in accordance with the law. Article 46 Investigation and Punishment of Unlawful Acts of Law Enforcement Personnel Working personnel of the administrative departments of tourism shall observe disciplines and laws and enforce the laws impartially. Those who neglect their duties, abuse their power, practice favoritism and irregularities, demand or take bribes or otherwise pervert the laws in performing their duties shall be given disciplinary sanction by the unit they belongs to or by the relevant competent departments. If their acts constitute a crime, their criminal responsibilities shall be investigated into in accordance with the law. Article 47 Administrative Review and Legal Action If the party concerned refuses to accept the specific administrative decision by the administrative departments of tourism as final, he/she may apply for an administrative review or take legal action in accordance with the law. If the party concerned does not apply for an administrative review or take legal action within the prescribed time limit, nor does he/she comply with the specific administrative decision, the administrative department that made the decision may enforce its decision in accordance with the law or apply to the people's court for enforcement. Chapter V Supplementary Provisions Article 48 Definition of Terminology International travel business referred to in these Procedures is defined as business involving foreign tourists coming into China or Chinese tourist going abroad. Article 49 Department Responsible for Interpretation of Application The Municipal Tourism Board may make interpretations concerning the practical application of these Procedures. Article 50 Date of Implementation These Procedures shall become effective on February 1, 2000. |
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