| With the development of economy and the progress of society,people's social interaction have become increasingly frequent, but the attendant security incidents are increasing. Most of these accidents are caused by the risk of land, buildings and other real estate. And if those who claim control of real property to take reasonable measures to prevent or eliminate the risk of immovable property, the danger does not occur or greatly reduced. Then, whether the controller of real estate to prevent or eliminate the risk of the real estate as an obligation?Does the controller of the real estate have the same obligations as all the victims? If the controller does not have the obligation to act as a real estate, If the controller of real estate has not fulfilled obligations as, whether it should bear tort liability for the victim? If you want to bear the responsibility, then what kind of tort liability should bear? Nowadays, these cases entering the court proceedings more and more, but our imperfect legislation, a different judge each case on the facts and legal issues related to knowledge and understanding, the verdict may be made completely different, therefore, In order to unify the judicial practice, and to balance the interests between the victim and the controller of real estate, to ensure that victims receive timely compensation for the fair and equitable distribution of tort liability between different subject, attention should jurisprudence and judicial practice field.This paper is divided into seven parts:Introduction: Common start with three typical cases of judicial practice, which is incorporated herein scope of the study- Real Estate controller omission liability causes damage to others. Land, buildings and other real estate owners, managers or users and other rights holders are not doing as positive obligation to take reasonable measures to prevent or eliminate the hazard itself or danger from the third person on the property, resulting in entering the real estate staff person, property damage, shall bear tort liability. In judicial practice, the real estate controller not entirely control the obligations as the damage caused by the case can be divided into three categories: First, eliminate the risk of delayed in their control of real estate itself; the second is delayed in eliminating the use of artificially produced management danger; the third is lazy prevent or stop violations. This paper attempts by induction, comparison and analysis of such cases, similar cases to trial ideas and provide our court judgment standards.Chapter 1: Study on the responsibility of the controller of the real estate. First, determinethe object of study- Real Estate and Real Estate controller. Starting from the legislative and judicial practice, the controller of human-induced land, buildings and ancillary facilities and other real estate rights, including owners, managers, and other people use. Property Law to determine ownership of rights, tort liability is determined, therefore, to assume obligations as a judge and not as a subject of tort liability is the fact that the rights of persons having control of the real estate, this article will be defined as " controller of real estate ". Second, the exposition of real estate obligations as a controller as well as the difference between the concept of duty of care, safety and security obligations and the like. Again, analysis of real estate control others Why do people assume obligations as a legal basis. Finally, the evaluation of real property obligations as a controller of relevant legislation and judicial practice. China has "Tort Liability Act," Article 37, Chapter XI few provisions and other laws and regulations to control the real property obligations as a person, and the results of related cases around the court is not uniform.Chapter Two: Comparison of the two legal obligations as a person of real estate control of the legislative and judicial. Real estate in civil law obligations as controller general performance of security duty of care obligations or social security exchanges security obligations, such as social interaction safety obligations in Germany, the French security obligations, the Duty of Care in Japan, Taiwan, China, in these countries and regions, real estate control obligations as people have developed more perfect. Anglo-American law on the control of real estate obligations as a person by negligence of duty of care in tort theories to solve the specific performance of the person in possession of land obligations. Land tenure Land tenure refers to the obligation of people who assume different identities for different duty entrants, also known as "Rule of Thirds" principle of distinction. Depending on whether the land was occupied by the consent or allowed profit will invade entrants into being can promise man and invited people who were landowners assume different duty of care to them.Two legal obligations as a person related to the real estate control theory and practice continuous integration and learn from each otherChapter 3: China should learn from the successful assertion of judicial experience in the common law system, establish a "dichotomy" identity principle of distinction. First of all, we explore the causes and trends in Anglo-Saxon countries the principle of the rule of thirds produced. "Rule of Thirds" principle despite being attacked British and American scholars and judges and partially abandoned, but still showed a strong vitality in the common lawsystem also make extensive use because of its rationality. Continental also learn from the successful experience of the common law. Secondly, theoretical research, law, justice and other aspects of the status quo analysis of the feasibility of drawing common law principle of trichotomy. Finally, we recommend the establishment of "dichotomy" identity principle of distinction, who will enter into legal entrants and intruder, real estate control people assume they are as different obligations.Chapter 4: Discussion of real estate control people's obligations as a legal entry. First, a reasonable definition of the scope of legal entrants, whether its consent, whether in time and agreed to enter the area, whether the purpose of the entry into other aspects of the legal definition of entrants. Then according to the process of real estate risk, and control of real estate to determine the person's commitment to lawful entrants control, checking, warning,protection and rescue obligations as obligations. In order to protect the interests of the minor,if the minor has a guardian to enter the real property is divided into two different situations,we discuss the control of real estate people to legally enter the minors as obligations.Chapter 5: Study of real property to control people as intruders obligations. First, in response to the control of real estate people have obligations as an intruder if the debate. In principle, the control of real estate people do not assume obligations as a trespasser, only control of real estate in intent, if gross negligence on the intruder as a bear obligations.Secondly, the control of real estate people trespasser should bear obligations as a special case:when the intruder is accidental entrants, frequent entrant or entrants known real estate control as people assume their obligations. Finally, focuses on the control of real estate people invaded minors shall bear obligations as the introduction of the "principle of temptation nuisance" theory of common law, real estate controllers to minors, regardless of legal entry or intrusion, should assume a higher degree than adults as obligations. Of course, the invasion of minors as a duty, but also consider the age factor minors, in fact, a minor over the age of fourteen people have enough knowledge and resolved dangerous immovable property and have considerable ability to protect themselves.Chapter 6: The control of real estate shall not bear responsibility as infringement. These include: control of real estate people do not practice as tort liability principle of presumption of fault. Real estate as an infringement by the controller does not damage entrants, real control of three parts through the fault and the damage and the causal relationship between the fault and the like, which focuses on the causal relationship between how people judge the realestate control omission and the damage, Real estate and judge people not entirely control the obligations of the principle as a fault that should be followed and considerations. Analysis of the supplementary liability "Tort Liability Act," Article 37 of the legislative and judicial unreasonable applicable not uniform. According to the analysis of the real estate people do not control the third person acts as the victim damage results in the degree of fault and why force in the third person acts to cause damage, the real estate control advocates do not assume added responsibilities, but should first press three parts bear responsibility.Our final recommendation should summarize judicial experience, people do not control the establishment of real estate as the tort liability system, adopt the general terms and provisions of the type of combination of legislative model.This article comes from the topic of judicial practice, the authors collated and analyzed a large number of judicial precedents, compare the safety obligations and Continental exchanges common law duty of care, legislative experience and practical results of two legal systems, control of real estate from our obligations as a person legislative, judicial and theoretical Lack of view, the case of real estate because of the dangers on the cause of the entrants personal immovable property damage comprehensive, systematic analysis, the type of research to clarify control of the real estate people are not as tort liability Construction of ideas, advocated the establishment of the real estate control people's obligations as a "dichotomy" principle of distinction, and try to systematize theories, in order to provide a theoretical basis and practical support for the improvement of relevant legal system, let the judge faced a similar infringement, It can be found in the nature of the infringement, to determine the main ideas and procedures fault judgment and responsibility in areas such as a set of systems, as far as possible with the co-determination. |
PDF Full Text Request