On The Safety Insurance Duty In Our Countries' Tort Law

"Person's safety is the supreme law." Human's safety includes personal and property safety. Along with society's development and the increase of risk works, in order to protect personal and the property safety practically, the law has stipulated the non- mistake responsibility in the law of tort from the angle of danger assignment. But there are some risks which often occur are too small to be stipulated in law, so they are adjusted through the safety insurance duty.With the accruement of multitudinous cases related to the safety insurance duty, the safety insurance duty has caught widespread attention and became the forces both in the torts law and the law of contract. Along with the increase of judicial legal precedent, the People's Supreme Court promulgated "Explanation about Certain Legal Questions on Personal Damage compensate Cases" (to hereafter refer to as "Explanation") in December 4, 2003.The Explanation has made the stipulation about the safety control duty which has the practical significance. But it has also caused many disputes. Theorists cannot achieve a mutual recognition to the concept of safety control duty, the legal basis, the nature, the concrete content as well as the nature of the legal liability responsibility if there is a violation, principle of the responsibility, and the responsibility of the third human when he or she abuse the duty, ect. So it is necessary to discuss the question further.This text is divided into four chapters. The chapter one discusses the origin and the development of the safety insurance duty, and its legal basis, the concept, the nature. The safety insurance duty is to adapt realistic need, be founded on the basis of the social development degree. The two big legal systems also have the similar stipulation, but the legal basis of the safety insurance duty has played as a lever to balance benefits and to assign rights. The safety insurance duty refers to the protection duty in certain social relations, in which person undertaking the duty must undertake the damage compensate responsibility if he violates this duty. The operator's safety insurance duty refers to the duty that operator has to insurance consumer or potential consumer or other enter into site for business operation. Looking from the comparison angle, various countries has difference stipulation, and our country theorists also have the very different ideas regarding this. The author believed that, the nature of the duty is take the legal duty as the principle, take promissory duty as the exception.The chapter two elaborated the content of safety insurance duty in detail. The author believed that the safety insurance duty has certain scope, therefore, we cannot castigate operator's safety insurance duty excessively strict, because it is impossible to give the refinement to all the various operator's concrete safety insurance duty, therefore the law may determines the concrete content of safety insurance duty through certain principle and standard.The chapter three has carried on legislative self-criticism to the safety control duty in our country law. This article examines the main question which exists in our country. The Explanation stipulated the safety insurance duty has absorbed the general security attention duty and the attention duty idea fully, with the purpose of adapting to the social development and resolving the harmful result of operator's non-do, achieving society justice in distribution. But there are many problems during the absorption, such as the question about integration of voluntary main body, "the limitation of reasonable scope", "the scope of preventing or stopping the harm", the responsibility nature, turning over to the responsibility principle, the supplement responsibility to save the waste question, the supplement responsibility compensation scope questions and so on. This chapter had mainly revolved these six aspects, and thought our country's safety insurance duty is imperfect and need to be constructed.The chapter four had proposed suggestion on constructing the safety insurance duty in our country's legislation, and mainly revolved five aspects to launch the discussion, such as the voluntary nature, the responsibility nature, the responsibility principle, the responsibility type, the necessary measure. For the realization of safety insurance duty's original legislation intention practically, we need to set up necessary measurement and liability insurance, and so on.The author attempted to promote the consummation in our country's safety insurance duty legislation, particularly the consummation in civil code, the enhancement of each correlation main body for own safe and other people safe sense of responsibility in the safety insurance duty, and to realize society's essence and promote society'sharmonious development.