Discussion On The Obligation Of Safety Of The Saler

The obligation of safety breaks through the strict boundary of Tort Law and Contract Law, and fully embodies the interaction and penetration of the said two laws. In combination with judicial interpretation, this paper discusses and analyses the obligation of safety of the saler. In addition, this paper brings forward many proposals on improving the obligation of safety in China. With exception to foreword and conclusion, this paper is comprised with 5 chapters. Starting from the existing problems in judicial practice and the difference in theory of laws, the Foreword expatiates the theoretical and actual significances of studying the obligation of safety. Chapter I defines the concept of the obligation of safety after analysing various theories and explores the theoretical foundation of laws in six aspects. Chapter II futher explains the the four main sources of the obligation of safety and divides the contents of the obligation into four parts: equipment and establishment, service management, keep away the infringement from the third party and violate the former activities. Commencing from the background to produce the different obligation of safety in Romano-Germanic Civil Law Tradition and Anglo-American Common Tradition, Chapter III takes comparative method as cut-in point and to summarizes the existence and development conditions of the obligation of safety under different traditions. In combination with the viewpoint of Chinese scholars and the practices of judicial circles, this Chapter points out that the nature of the obligation of safety is: principally the tort in violation of the legally-prescribed obligation and exceptionally the contractually-prescribed obligation; principally the basic obligation and exceptionally the subsidiary obligation; principally positive conduct obligation and exceptionally negative conduct obligation. Chapter IV firstly analyses the liability nature of the obligation is that the tort liability is predominant and the liabilty of breach the contract is supplementary; the principle of liability fixation is doctrine of liability for wrong. We ascertain saler who should assume liability through presumtive tort, which is determined by the current business development and is beneficial for the rights of the customers; Chapter V carries out the theoretical and demonstration analysis of the applicable scope and liability-free causes in violation of the obligation of safety. It analyses the types of liability to be borne in the event of violation of the obligation of safety, and focuses on the dissertatation of supplementary liability for compensation in accordance with the provisions of Article 6 in Interpretation of Many Problems of Applicable Laws in Connection with Hearing Personal Injury Compensation Case as issued by The Supreme People's Court. The conclusion defines the the theorical and practical significances of the obligation of safetsafetyset and introduced into Chinese judicial practice, and expects the said system to distribute the social justice from the whole legal system and practical fields with a view to achieving the win-win results.