The Study On The Security Guarantee Obligation Of Employers

The security guarantee obligation is one of basic legal obligation inemployment relationship, which ensures the safety of the employees' personand property. The employers' security guarantee obligation has become a newquestion for many scholars to study. The design of security guaranteeobligation of employers is leading the way, for extricating ourselves from afacing difficult position of the damage of the employees' rights and interestsin our employment's situation. In the article, it stands for the opinion that thesecurity guarantee obligation of employers should be a legal rule as a legalobligation, and also points out that that in our state there are still somedisputes of theory, reality issues of judicial practice and legislativeshortcomings about the employers' security guarantee obligation. Throughcontrasting and case analysis, the writer inquires into and analyzes on thebasis of theory, content and the concrete applicable of employer'sresponsibility about the security guarantee obligation of employers. Thearticle suggests some methods for improving the institution of securityguarantee obligation of employers, longing for settling the issues of judicialpractice by drawing up this duty. It is very important for using of referenceand improving the law system of security guarantee obligation of employersprogressively.The article includes two chapters except summary, introduction, andconclusion.The summary clarifies the article's main idea of security guaranteeobligation of employers and comment on concisely.The introduction comments on the significance of the security guaranteeobligation from the difference between the employer's issue and theory insociety and practice.The first chapter is the summary of security guarantee obligation ofemployers. The main issues include four sections.Firstly, in the article, the writer limits the study's range of employmentrelationship, and concludes the concepts of employment relationship andsecurity guarantee obligation of employers, and also discusses several maindoctrines about the legal character of security guarantee obligation ofemployers and points out their characteristic and applicable scope. The writerintroduces the doctrines of accompany duty, labor law duty, and contractstandard duty, and insists to take the security guarantee obligation ofemployers as a legal duty.Secondly, by the principle of seeking the substantial equality andmaintaining the justice, the benefits according to the risk, public order custom,and the theory of social cost, risk controlling and the protection of rights andbenefits including the benefit for reliance and person rights, the paperdiscusses the jurisprudential theory of security guarantee obligationundertaken by the employers. It makes a solid theory foundation for thelawfulness and rationality of ensuring the security guarantee obligation ofemployment relationship.Thirdly, on the view of comparative method, the paper studies the ruleof employers' security guarantee obligation of continental law system and theEnglish and America law system. Through concluding the development andevolution of the France's security guarantee obligation, German's securityduty of care, Japan's safety duty of protection confirmed by judicial decision,Taiwan's the law of defense of others, the duty of care of America tort law,and the duty of safety protection of British. It evaluates doctrines of theabroad situation and system about the security guarantee obligation ofemployers. It depends on the situation in other countries and concludes thecontents of this obligation, including employing the suitable employee,supplying the safe equipment, ensuring the safe working environment, andrational safe working mechanism, etc.Lastly, the paper analyzes the character of responsibility, which theemployer should undertake when he breaches the security obligation, andevaluates the characteristics of the doctrines of the tort liability, contractliability and the competitive liability between tort and contract. The writerstands for defining the tort liability as the main duty's character. Bycontrasting the criterion of liability in different countries, it concludes theno-fault principle and the fault principle. Then, the paper analyzes theemployer's counterplea by force majeure and the employee's wilful andnegligence, and completely discusses the state that the employer breaches thesecurity guarantee obligation.The second chapter mainly studies the status quo of our state's securityguarantee obligation of employers, and takes some suggestions aboutimproving our country's institution.On a side, with the systematic analysis, the writer introduces the statusquo of security guarantee obligation of employers in our country. From laborlaw field and civil law field, by analyzing law concretely, it concludes thesecurity guarantee obligation of labor relation and civil employment relation,and estimates the shortcoming in our related legislative field, which is thatthe theory is out of keeping with practice and the legislative practice doesn'tunify with the law's application. It foreshadows the improvement of theemployers' security guarantee obligation institution of our country.The other side, the writer who integrates the case analysis and the lawapplying state of legislative practice in our country, makes suggestions fordesigning our employers' security guarantee obligation, By framing thecontents of security guarantee obligation of employers, improving theliability system of security guarantee obligation of employers, and employerliability insurance, it points out the realistic necessary of drawing up thissystem with having the consideration for the property rights, expounding thatit introduces the employers' no-fault liability and fault liability in thedifference types of employment relation and the allocating of burden ofproving, and framing the employer's additional liability when the thirddamage occurs. It also concerns the limits of liability of security guaranteeobligation of employers in employment relationship. Finally, it accounts forthe designing of employers' liability insurance system, which is one ofimportant parts in security guarantee obligation.The paper's conclusion refines the writer's main viewpoints. It expressesthe hope of improving the legal system of security guarantee obligation ofemployers.