Travel contract

A travel contract (여행계약/旅行契約) is an agreement in which a travel agent is obliged to perform the travel itinerary as scheduled, to explain the terms and conditions of the travel contract, and to enter into the necessary insurance contract for the clients while a traveller is obliged to pay the travel expenses and to cooperate with the travel agent.

Though civil law scholars insist that the Civil Act should regulate the travel business by amending the Civil Act, at present the travel contract is in general subject to the Tourism Promotion Act (관광진흥법/觀光振興法) and the Civil Act in general.

The travel business (여행업/旅行業) is defined as a business to provide to travellers or operators of transportation, accommodation or other travelling facilities with such services as arrangement to use the said facilities, acting to represent the relevant party for the use of the said facilities, or provision of travel guidance or other necessary convenience (여행자 또는 운송시설·숙박시설, 그 밖에 여행에 딸리는 시설의 경영자 등을 위하여 그 시설 이용 알선이나 계약 체결의 대리, 여행에 관한 안내, 그 밖의 여행 편의를 제공하는 업)

Key words
travel agenct, traveller, travel contract, general terms and conditions, compensation, indemnification clause

Travel contract
A travel contract shall include the followings in writing:
 * Name of traveller(s) in conformity with the name on the passport
 * Period of travelling including the departure and arrival by air/sea
 * Itinerary
 * General terms and conditions subject to the authorized standard form.
 * Special terms and conditions, in particular, concerning compensation for breach of contract, guide tips and such options as shopping, additional tour, admission fees, etc.

In this regard, the Ministry of Culture, Sports and Tourism acknowledges a good travelling product (우수여행상품 인증제도) subject to the evaluation of the government committee in terms of security, consumer protection, originality, marketability, satisfactory response, quality, etc.

General terms and conditions
Both a travel agent and traveller may change the terms and conditions, and other items of the travel contract as the case may be. In this case, the affecting party shall refund to, or pay the damages inflicted by, the affected party.

Liabilities of Travel agent
If the travel has been performed with some defects, the travel agent should be subject to breach of contract (insufficient or non-performance) and warranty liabilities. In this case, the traveller is entitled to demand refund of travel expenses, supplementary performance, termination of the contract, damages and provision of return trip. It should be noted this kind of liabilities are different from that of a seller or contractor (수급인의 담보책임/受給人 擔保責任) because travel agent's performance is, in nature, intangible, and partly conducted but closely connected each other for a certain period of time.

Cancellation
Under the standard form (general terms and conditions) of a travel contract (여행업표준약관), a travel agent or traveller may, prior to departure of the travel, cancel this travel contract; provided, however, that the damages caused to the affected party shall be paid accordingly in accordance with the government notification on consumer dispute resolution/compensation (기획재정부 소비자피해보상규정/공정거래위원회 소비자분쟁해결기준, 공정위고시 제2011-10호).

Exceptions to the above compensation:
 * 1) 여행자의 안전과 보호를 위해 여행자가 요청하거나 현지사정에 의해 부득이하다고 쌍방이 합의한 경우
 * 2) 천재지변, 전란, 정부의 명령, 운송·숙박기관 등의 파업·휴업 등으로 여행의 목적을 달성할 수 없는 경우
 * 3) 여행자의 3촌 이내의 친족이 사망한 경우
 * 4) 질병 등 여행자의 신체에 이상이 발생해 여행 참가가 불가능한 경우
 * 5) 배우자 또는 직계존비속이 신체이상으로 3일 이상 병원(의원)에 입원해서 여행 출발 전까지 퇴원이 곤란한 경우 그 배우자 또는 보호자 1인
 * 6) 여행업자의 귀책사유로 계약서 또는 여행일정표·여행설명서에 기재된 여행 일정대로 여행실시가 불가능해진 경우
 * 7) 여행요금의 증액으로 여행을 계속하기 어렵다고 인정될 경우(국외여행에만 해당)

Termination
Under the standard form (general terms and conditions) of a travel contract, a travel agent or traveller may, after departure of the travel, terminate this travel contract; provided, however, that the damages caused to the affected party shall be paid accordingly.

Indemnification of Travel agent
In particular, a traveller should pay attention to the conditions to refund because such special agreement between the travel agent and the traveller shall prevail over the above-mentioned government notifications even if there is any difference in the compensation standard, which deserves detailed explanation by the travel agency in advance.

Why is such indemnification clause on the part of the travel agent regarded as legally effective?

It must be a balancing work of law when comparing the travellers' benefit based on less expensive packaged tour with unexpectedly huge burden of a travel agent with relatively low profit. In this case, the travel agent shall not be indemnified if he/she fails to notify knowingly the traveller(s) of any problem. Nor the travel agent is allowed to be held harmless or transfer the burden of proof without any reasonable reason or force majeure incidents beyond his/her control.