This article is devoted to the study of legal regulation of tourist services. We have looked into the following issues: the history of the emergence of tourism as a form of travel, economic and social preconditions for the development of tourism. Much attention is paid to definitions of the basic concepts, such as tourism services tourist product, tourist services, as well as the legal regulation of the services on the basis of a standard-for service agreement of the Republic of Kazakhstan. Finally, we provide the analysis of the existing legislation in the field of tourism services and determine the legal nature of the contract for the provision of tourism services.
In the 21st century tourism, as a social phenomenon has acquired great importance not only as an opportunity to meet one of the most instant human needs, such as the need to learn by experience, but also has become one of the most innovative and promising areas of socio-economic, political, cultural and educational activities of various states. Today tourism is as profitable and equal in benefits state activity as those traditionally financially viable industries as mining, construction, automobile manufacturing, and banking. Worldwide tourism figures are sustainably high and stable regardless of circumstances. Tourism in its current understanding became a phenomenon of the XX century, as it was activated by the availability and development of the various modes of transport (e.g. cars and planes with jet engines). But mankind throughout its long history has always endeavored to travel in order to develop trade, conquest new lands, and discover resources. Indeed, people always sought to explore new lands fleeing from hunger and other hazards; sought to discover new lands to know the structure of the world. In fact, as ancient Vikings used to say, «Life is not necessary, sailing the seas is.» Moreover, the remains of the first humans (Homo erectus) were found in Western Europe, Africa, China and Java. This fact indicates a remarkable ability of the ancient people to travel long distances without any means of transportation. Furthermore, the invention of money by the Phoenicians and the development of trade, which began in the 4th millennium BC., can be defined as the beginning of the modern era of travel. The Phoenicians also invented writing and the wheel, therefore, they can rightly be considered the ancestors of «tourist business» [1; 125].
Travel is a term used to describe a movement of people in space regardless of the purpose of such movements. Tourism is a kind of travel. Thus, tourism (both national and international) is the product of a long historical development.
Today the touristic industry has embraced not only Europe, which is a traditional tourist center, but also the Americas, Africa, Asia and Australia.
Tourism is one of the three leading economic sectors in many countries. It is developing quite rapidly and is of great social and economic importance, as it increases local revenues; creates new jobs; develops all industries associated with the production of tourist services; develops social and industrial infrastructure in tourist centers; activates the activity centers of folk art and centers of cultural development; provides a rising standard of living of local population; increases foreign exchange earnings.
A positive impact of tourism on the economy of a state occurs only when tourism is developed comprehensively, i.e. it does not turn the country's economy into service economy. In other words, the economic efficiency of tourism suggests that tourism should develop in parallel and in conjunction with other sectors of socio-economic complex. However, even with such a long history, tourism has not acquired an unambiguous definition. There is still no consensus on the conceptual apparatus and instruments for research in the field of tourism. Tourism can be defined as a set of phenomena and relationships arising from the interaction of tourists, suppliers, local authorities and local communities. Travel and tourism are a set of related business fields. The closest occupation to tourism is distribution of tours, i.e. the work of tourist agencies. Indeed, car hire companies, railroads, buses, hotels and restaurants are all directly involved in tourism. Related business spheres also include financial institutions that fund the development of the service sector and others.
Tourism as a special case of travel has clear limitations, characteristics, and many definitions in the conceptual sense. Unlike travel tourism as a category is strongly influenced by the market and as having dualism (duality) of the inner nature of the phenomenon, since tourism is both a special, massive kind of travel, and activities for the organization and implementation of these trips.
Definition and delimitation of the concepts of «tourism» and «tourism industry» still remains an open question. There is no clear systematization of the main components of demand and supply in tourism and of the tourism production statistics. Tourism is a temporary movement of people from their places of permanent residence to another country or locality within their country in their spare time in order to obtain pleasure and relaxation, recreation, guest, educational, professional or business purposes, but without taking up paid employment within the place visited. In 1963 the United Nations Conference on International Tourism in Rome addressed the issues of tourism definitions. The following definition of «tourist» was adopted there, which fully goes as follows: a tourist is a consumer of a trip, touristic product or tourism services; a temporary visitor of an area, locality, territory or country regardless of nationality, ethnicity, sex, language or religion; located in the area of not less than 24 hours, but not more than 12 months in a calendar year, or is outside their place of residence within the country and carrying out at least one overnight stay; traveling for pleasure or with educational, medical, business purposes and not to work in a place of temporary residence, paid from a local source. Diversity of the definitions of tourism can be explained by the fact that as a complex socio-economic phenomenon tourism attracts specialists from different sectors of the economy, each having its own point of view. For example, some authors emphasize the importance of tourism for travelers, others focus on the relationship between producer and consumer of tourist services, a number of experts indicates its growing importance as a business activity. In fact, existing definitions of tourism can be combined into three groups.
The first group includes definitions that characterize tourism as recreation (expanded reproduction of the physical, intellectual and emotional powers of people), as the system and the form of spending the free time by the use of services during outings and trips that combine leisure and promote human health with an increase in its overall culture and education. In particular, the Manila Declaration on World Tourism the latter is regarded as one of the outdoor activities, is a journey, committed for the purpose of knowledge of certain areas, new countries and combines a number of elements of sport. Such definitions are highly specialized in nature and cover only certain aspects of tourism and its specific features.
The second group of definitions of tourism sees it as a form of migration, relates to the act of movement, travel, overcoming space and serves as a tool of tourism statistics.
And finally, the third group of definitions describes tourism as a complex socio-economic phenomenon, reveals its content, which is expressed in the unity of the manifold properties and relations.
Thus, there are many definitions of tourism that cover its various aspects. However, absence of a unified approach to this issue not only complicates the study of tourism as a structured academic discipline, but may have adverse consequences in practical actions of subjects of tourist activity [2; 324].
The system of tourism, according to K.Kaspar, a Swiss researcher, is based on two subsystems: the subject of tourism, i.e. tourist is a consumer of tourist services with different needs and behavioral motives; the object of tourism, which consists of three elements: a tourist region, tourism enterprises and tourist organizations.
A set of enterprises of material production and of non-production sphere, ensuring the production, distribution, exchange and consumption of tourist services, the development and operation of tourism resources, as well as the material and technical base of tourism is called the tourist industry. Organizations are also involved in the process of providing tourist services. These include state and public organizational and legal structures governing and coordinating the development of tourism in a region, providing conditions (such as infrastructure, information, security, freedom of movement, access to and preservation of tourist sites, the formation of tourist image of the region, etc.) for effective functioning of tourism. Therefore, the tourism industry is a set of hotels and other accommodation, transport, catering, entertainment facilities, educational facilities, commercial, recreational and other purposes, organizations engaged in tour operator and travel agency activities, as well as institutions providing excursion services and services of guides and interpreters. These organizations form a tourism policy and take actions to meet diverse needs of people in different kinds of recreation and travel with rational use of existing tourist resources and provide high quality services for tourists at the national, regional and local levels [2; 324].
State regulation of tourism development is the impact on the state work of businesses and market conditions to ensure normal conditions for the functioning of the market mechanism, the implementation of government social and economic priorities and develop a common concept for the development of tourist areas. This is a complex process involving a procedure for the development of public policies regulating the development of tourism, study its goals, objectives, main directions, choice of instruments and methods of its implementation. Article 9 para. 3 of the Regulation «On tourist activity in the Republic of Kazakhstan» defines methods of state regulation of tourist activity. This includes designation of policies for the development of the tourism industry, investments in tourism; adoption of normative legal acts aimed at improving relations in the field of tourism; licensing of tourist activity in accordance with the Regulation of the Republic of Kazakhstan «About permissions and notifications»; standardization in the field of tourist activity according to the law of the Republic of Kazakhstan on technical regulation; facilitation of the hiring process in the sphere of tourism; facilitation of participation of domestic tourists, tour operators, travel agents and their associations in the international tourist programs; assistance in the promotion of the tourism product in domestic and international tourism markets; ensuring rational and efficient use, reporting and protection of tourist resources of the country .
The tourist industry is a set of organizations that provide various services for tour operators and travel agencies such as lodging; transportation; food stations, entertainment, education, business, health, sports, etc; as well as organizations that provide services and sightseeing guides and interpreters. The tourist industry has got a solid material and technical base, provides employment for a large number of people and interacts with all branches of state economy. More broadly, the tourism industry can be defined as an interdisciplinary complex comprising: a) passenger transportation (air, water, road, rail), with its extensive network of technical services; b) various specialized tourist enterprises and industries that do not have a pronounced character of tourism (in particular, transport engineering and automotive fuel industry, and major road construction, local industry for the production of souvenirs, food industry, many sectors of agriculture; and c) a broad scope of supplementary services used by tourists [4; 117].
In any activity the most pressing issue is the one of definitions, which allows adequately interpret the subject, object, terms of a transaction, principles and provisions of regulations. Discrepancies in the interpretation of the terms used can have dire consequences in practical actions of subjects of tourist activity. That is why the first article of the Tourism Act is devoted to basic concepts in tourism. It should be noted that the controversy surrounding tourism terminology has existed for a long time. Different versions and interpretations of key concepts have been put forward and amended repeatedly. There is a particular conflict related to the two terms «touristic» and «tourist». As Vikulova notes and it is hard to disagree with her, the term «tourist» is more familiar and convenient to use in the everyday speech. Official and final consolidation of the concept of «tourism» is derived from the adoption of the Law on Tourism, which refers to the need to bring all other normative legal acts in compliance with this Law. Nevertheless, in the legal literature, some experts continue to use the term «tourist.» In this regard, one should agree with the opinion of Birzhakov who suggests an introduction of an article to the Tourism Act where the terms «touristic» and «tourist» would be set equal in importance and would have equal legal consequences [6; 56].
The Law of the Republic of Kazakhstan «On tourist activity in the Republic of Kazakhstan» dated June, 13, 2001, with the latest changes and additions from July 15, 2011, № 467-IV (hereinafter the Act) provides basic terms and their definitions, officially used in the tourism industry of the country. According to the Act, tourism constitutes a journey of individuals with the duration of twenty-four hours to one year, or less than twenty-four hours, but with an overnight stay for purposes not related to paid activity in the country (place) of temporary stay. Tourist is an individual visiting a country (place) of temporary stay for a period of twentyfour hours to one year and performing at least one overnight stay in that country with the purpose of improving health, obtaining education, doing business, sports, or religious activities and having other purposes without engaging in paid activity. In its turn, tour operator activities is entrepreneurship of individuals and (or) legal entities licensed to the activity of formation of the tourist product, its promotion and sale, as well as for the promotion and implementation of the tourism product, formed by non-residents of the Republic of Kazakhstan (hereinafter — the tour operator). Furthermore, travel agency activities is the business of physical and (or) legal entities for the promotion and implementation of the tourism product, formed by the tour operator (hereinafter — the travel agent). Finally, tourism policy of the state is a set of forms, methods and areas of influence of the state on the functioning of the tourism industry to achieve specific objectives of conservation and development of the socio-economic complex.
The main directions of Kazakhstan's tourism policy are protection of the rights of travelers; protection of the interests of domestic producers of tourism products; global support of domestic tourism, which may take the form of: a) direct investment in the formation of tourism infrastructure; b) scientific and advertising information support to promote national tourism products in the world market; c) tax and customs privileges, stimulating investment. In fact, tourism policy of the state is based on the strategy and tactics.
Tourism Strategy works on a common vision of development of targeted programs the implementation of which requires time and considerable financial resources, whereas, tourist tactics represent specific measures and methods to achieve this goal in the specific context. Thus, the subject and object of tourism constitute the basis of its socio-economic system [1; 250].
The activity of the organizers of a touristic journey is ultimately aimed at providing comprehensive travel services to a consumer in the course of his/her journey. Therefore, it is impossible to identify particular aspects of legal regulation of tourist services without analyzing the legal regulation of tourist activity in general.
The Law of the Republic of Kazakhstan states that a tourist activity is an entrepreneurial activity of individuals or entities aimed at the provision of tourism services. Yet, the problem of definition and scope of tourist activities as a type of business has not been sufficiently reflected in science. Authors have either not investigated the subject, or have limited themselves to only stating the entrepreneurial nature of tourist activity. This may explain the use of the term «service», which, as we know, belongs to the civil category and is the subject of civil rights. The concept of «tourism activity» has several meanings both in the literature and practice [1; 250]. First, it is understood as activities of specialized organizations for the provision and organization of tourist services and products; secondly, as the occupation of tourism, recreation, sightseeing, leisure; and thirdly, as the manifestation of social policy in order to implement the rights of citizens to rest, use freedom of movement and other rights in the commission of travel. Tourism services represent services necessary to meet the needs of the tourist, provided during his travels and related to an actual trip (accommodation, transportation, meals, excursions, tourism instructors, guides (guides and interpreters), and other services provided by the contract for tourist services rendered depending on the purpose of the trip. In other words, tourist service is considered as activities aimed at meeting the needs of the tourist directly in the ongoing tour (for example, accommodation services, food, transportation, etc.). Indeed, Vikulova considers that the activities of the organization of trips and activities tourist services provision are two different concepts. Tourist activities is a professional activity of individuals and legal entities on the organization of a journey in which the travel agency is the organizer of the travel, but not the executor of services included in this trip, whereas, activities in the provision of tourist services is the work of organizations of the tourism industry. Moreover, organization of a travel is an activity in which a tourist (customer) receives via a travel company (contractor) the rights to claim for services such as transportation, hotel accommodation (rent), nutrition, etc. Thus, the travel agency cannot be executors of these services as part of the tourist activity .
Vinokulova believes that provision of tourist services is not regulated by the legislation of tourist activity, since they do not relate. Tourism and travel services are similar only in the fact that in both cases we are talking about entrepreneurship, which is governed by civil law .
Tourist activity, as noted by Pisarevsky, is covered by the civil law, which regulates relations between persons engaged in entrepreneurial activities and, therefore, it is subject to all the terms and principles of entrepreneurship [7; 111].
Tourist activity in general is uniformly defined as the activities of tourists, tourism organizers and the state. However, proper tourist services are completed by different entities (who by large are intermediaries) and not by the organizers of trips, namely the direct providers of transportation, accommodation, food, etc. Attribution of these economic entities to the tourism sector is a key issue, especially in terms of benefits and other priorities. The Tourism Act identifies the broad category of the concept of «tourism industry», but does not develop it in the next provisions, in other words, it regulates in detail only the activities of tour operators and travel agents, omitting the actual problems of regulation of tourist services.
As it was said before, both individual entrepreneurs and legal entities can act as tour operators or travel agents. The Tourism Act does not set specific requirements for organizational and legal forms of tourism organizations. Moreover, there is no indication on the commercial focus of the activity. Therefore, they can be created in any organizational and legal forms, as even non-profit legal entities established by law.
The content of the tourist activity can be considered in both narrow and wide contexts. In a narrow sense, the tourist activity is understood as activity of tour operators or direct executors of the contract for compensated provision of tourism services under Art. 683 of the Civil Code of the Republic of Kazakhstan. Tourist activity in the broadest sense includes, in addition to the provision of tourist services, the actions of the tour operator for the conclusion and execution of contracts with the direct executors, providing individual tourist services, and a travel agent or tour operator’s action in advertising tourist services, participation in exhibitions and fairs. Tourist activity has all the constitutive features of entrepreneurship: the focus on systematic profit, risk nature of the activity, and making a profit from the provision of services.
Tourism services constitute an activity (action) of businesses in the tourism industry and include: accommodation services, catering, transportation, excursions, guide service and other services designed to meet the needs of tourists. Tourist product is a set of tourist services required to meet the needs of a tourist during his tourist trips undertaken within a specific timeframe on a certain route. Legal relations arising in the field of tourism activities are governed by the civil law in conjunction with public law (administrative, environmental, financial, etc.). The specifics of the legal regulation of tourist services is that all legal regulation in the tourism legislation should be reflected in the contract with the tourist or the terms of the contract should not contradict them. Provision of tourist travel services is formalized through the system of contracts. Essentially, a contract providing tourist services should be regarded as the base for contractual relations of organizations engaged in tourist activities, since the obligation arising out of this agreement objectively induces them to enter into various contractual relationships with others, providing the fulfillment of the obligation to provide travel services to the consumer. Contract providing tourist services is not only the basic legal means to achieve a certain result, but also acts as a civil legal instrument protecting the rights of consumers in the exercise of tourists travel, which results in the need to do a detailed research. Different definitions of this type of agreement are used in Russian and other foreign legislations .
Thus, the Law «On the basis of tourist activity in the Russian Federation», (Article 6) the term «contract» qualifies as a «contract of retail purchase and sale of a tourist product», in the Civil Code. (Article 779). The German Civil Code (Article 651) calls it the contract for tourist services. The International Convention on the contract for journey (1970) uses the term «contract for the journey.» The Ukrainian law «On Tourism» applies the term «contract for the provision of tourism services» (Article 18). In practice, people use contracts for the purchase of a tourist tour, tourist service contracts. In addition, some authors suggest using the contract of sales of non-property rights .
If we analyze available publications, there are two most common points of view. The first is that the relationship between a tourist and the person performing tourist activities is governed by the contract of retail sale. According to the second belief, the legal form of the above-mentioned relationship is a fee-based service contract. The first view is based on the fact consumers buy the right to a range of services. We prefer the second point of view where the subject of the contract is the provision of services, to be more exact the tourist service itself. Some clarity has been made by the Supreme Court of the Russian Federation, which during its consideration of the real case pointed out that the relationship between the buyer and the tourist company is not regulated by the rules of retail sale, but according to the rules of a fee-based service agreement. Indeed, the contract on tourist services provision is one of the central issues in tourism, including international tourism. Unlike an unorganized tourist trip, which is regulated by a variety of civil and legal agreements concluded with the performers of individual tourist services, for an organized tourist trip it is enough to enter into a contract for tourist service with a person who undertakes the responsibility to provide tourist services. Considering the above-said, as well as the provisions of Chapter 33 of the Civil Code of the Republic of Kazakhstan, Strigunova offers the following definition: tourist services contract is an agreement whereby one party (tour operator) with a purpose of implementation of a touristic travel is obliged to provide the other party (customers who may not be the only the tourist, but also a person who acquires services are not for others) a range of services (at least two), one of which is transport or accommodation and other services, and the customer agrees to pay for them [9; 6–8].
Such contract is consensual and mutually-binding and non-gratuitous. Typically a contract providing tourist services is public. Moreover, Article 17 of the legislation on tourist activity in the Republic of Kazakhstan provides the written form of the contract. Essential terms of the contract for tourist service are set in the standard contract approved by the Government of the Republic of Kazakhstan. Each party is entitled to request amendments or cancellation of the contract due to the significant change of circumstances which become different from those at the conclusion of the contract.
A typical feature of these agreements is that paragraph 4 of Article 17 defines a substantial change of circumstances, that includes:
1) deterioration in the terms of travel, changing the timing of the trip;
2) unexpected increase in transportation tariffs;
3) the introduction of new or increase of existing tax rates and fees and other mandatory payments to the budget;
4) other grounds defined by mutual agreement.
By virtue of the provisions of Chapter 33 of the Civil Code of the Republic of Kazakhstan the contract performer and the customer are considered as parties to the contract. Performer in this contract is the person who is able to provide tourist services. Customer in a standard contract for tourist services is a tourist. The contract for tourist service is designed as a typical paid services agreement. The subject of the contract is the provision of tourism services. In case of a purchase of travel services included in the tour a tourist voucher would be a supporting document to protect the rights of the tourist. The rights and obligations of the parties are envisaged in the standard-form agreement on tourist services (approved by the Government of the Republic of Kazakhstan dated October 16, 2008 № 957).
In accordance with the contract in preparing for the trip, during its commission, including transit, the consumer has the right to appeal to the consular, diplomatic and other state and tourist offices in the event of attacks on his personal safety or property; to receive all the necessary and accurate information about the rules of entry into the country (place) of temporary stay, as well as about leaving the country (place) of temporary stay and rules of staying there, especially about the law of the country (place) of temporary stay, the customs of the local population, religious rites, shrines, nature, history, culture and other tourist sites display under the special protection of the state, to know about the environment; freedom of movement, free access to tourism resources in view adopted in the country (place) of temporary stay of restrictive measures; indemnity and moral damages in the event of any breach of the Treaty on the tourist service by the Contractor in accordance with the legislation of the Republic of Kazakhstan; receive emergency medical care; assistance of public authorities of the Republic of Kazakhstan to obtain legal and other forms of assistance to foreign tourists; unimpeded access to the means of communication.
At the time of travel, including transit the customer is obliged to comply with the legislation of the country (place) of temporary stay; preserve the environment, and care for nature, history and culture in the country (place) of temporary stay; comply with the rules of entry and residence in the country (place) of temporary stay and the rules of departure from the country (place) of temporary stay in the countries of transit; follow the rules of personal safety during the whole travel.
Consumers undertaking to travel to the country (place) of temporary stay, must take preventative measures in accordance with international health regulations and other duties determined by the legislation of the country (place) stay.
Contractor is obliged to provide services under the contract properly and in timely manner; provide information on specific third parties that provide some tourist services included in the tour; for the carriage of passengers on any form of transport provide the consumer with an individual or group (for maintenance of the tourist group) carriage document (ticket), containing the names of the places of departure and destination, basic rights and duties of passengers. Three days before the start of the trip the contractor is obliged to inform the consumers in writing about the features of travel, including necessary and accurate information about the rules of entry, exit and stay in the country (place) of temporary stay, about the law and customs of the local population, religious rites, shrines, monuments of nature, history, culture and other tourist sites displayed under special protection, the environment, and the dangers they may encounter when making travel and implement preventive measures to ensure the safety of consumers; immediately inform the competent authority in the field of tourism activity and the authorized body in the field of natural and man-made disasters, as well as the family of the Consumer from the time when they knew or should have known about the emergency situation with the Consumer while traveling.
Responsibility of the parties in the paid tourist services agreement includes the following provisions. In the case of dissatisfaction in quality and (or) the volume of tourist services provisions of the Agreement upon arrival in another country or on the route Contractor shall be liable for the improper performance of the Contract. In case of impossibility of performance of the Contract through the fault of the Consumer, services are payable in full, unless otherwise provided by legislative acts or of a service agreement. In the case where the impossibility of execution of the Agreement arose due to circumstances, for which neither party does is responsible, the Customer shall reimburse the Contractor actual expenses incurred. The Contractor for all means of transport shall provide the consumer with an individual or group (for maintenance of the tourist group) travel document (ticket), which contains the name of the points of origin and destination, basic rights and duties of passengers. Responsibility for the transportation and preservation of unclaimed baggage remains with the Customer. If the Contractor has issued a ticket, baggage invoice or bill of lading accepted for shipping, but made errors, damaged or lost them, or if for any other reason it is impossible to produce, the transport contract remains in force.
The Contractor shall not be liable for damages suffered by consumers around the time of the trip due to force majeure.
The order of conclusion, modification, termination of the paid tourist services contract is governed by the general rules of civil law on the procedure for the conclusion, modification, termination of a civil contract. The standard-form contract ensures that during the preparation for the trip, its commission, including transit, the consumer has the right to terminate the contract in the event of non-performance or improper performance of the Contract by the Contractor, under the conditions and in the manner provided by the legislation of the Republic of Kazakhstan. Contractor shall have the right to withdraw from the contract only if the full recovery of customer losses caused by the termination of the Agreement is secured, unless it is the fault of the customer.
Each party has the right to require changes or termination of the Agreement due to the significant change of circumstances that were considered at the conclusion of the Agreement.
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