Analysis Of The Obligation Of Security And The Liability

Nowadays the legal relationship in our society becomes more and more complex. But the traditional tort law can't deal with some new problems because of the law's hysteresis. The most important problem now is that persons who undertake some business or social activities idle to take some reasonable actions so that other persons suffer personal or property damage, but the victims can not get the full and timely compensations. The presentation of the obligation of security is a rectification about the mistake of only paying attention to the positive tortuous actions in traditional tort law, protects the personal interests and the whole interests of the society and develops the spirit of the social mutual cooperation, which is in favor of constructing a harmonious society.According to 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, with the comparative study of the continental law system and the common law system, the article aims at a detailed discussion of the obligation of security in China , specifically, the nature of the security and the violation of the security, the doctrine of liability fixation and the forms of tortuous liability in order to solve the problems in the judicial practical and perfect the jurisprudence on the obligation of security in our nation. With this comparative study of the obligation of security at home and abroad,it is significant to use them for reference in further improving the legal system of the obligation of security in China.With exception to introduction and conclusion, this paper comprises four chapters, each of which is given a summary about their contents as follows.Introduction :Starting from the existing problems in judicial practice and the difference in theory of laws, the introduction expatiate the theoretical and actual significances of studying the obligation of security.Chapter I :Chapter I defines the concept of the obligation of security, expounds the characteristics of the obligation of security, In combination with the viewpoint of Chinese scholars and the practices of judicial circles, with this comparative study of the obligation of security at home and abroad,this chapter points out that the nature of the obligation of security。About the nature of the obligation of security ,first, this Chapter expatiates the attached obligation and the legal obligation,after the description of the advantages and the disadvantages of the attached obligation,it expounds the advantages of the legal obligation. On this basis, this Chapter conclude that :Although the duty to safeguard security could be stipulated by contracts, the nature of the duty is generally legal obligation, with the exception of conventional obligation in some special conditions.ChapterⅡ:Commencing from the background to produce the different obligation of security in the continental law system and the common law system, ChapterⅡsummarizes the existence and development conditions of the obligation of security under different traditions, analyzes and expounds the different background of the production and existence of the obligation of security under the two systems.First comes the study of Germany where the scope of duty of care has extended from a "traffic safeguard obligation" to an ``ordinary safeguard care of duty." The scope of tort law in German's legal system was too narrow while that of the law of contract too wide. In view of this fact, and to make up for the inadequate tort law ,contract liability has been extended, thus comprehending into the judgment of the law of contract personal injury inflicted during the concluding period of a contract, and injury inflicted as a result of the violation of the obligation of security by the obligation on the third party ,who lacks contractual relationship but is ,all the same, closely related to the obligation。Then it is to the obligation of security of French, which has undergone a"contractual——to—tortuous".After then, the text prescribes the obligation of security in Japan and in Tai Wan District.The last case study issues the duty of care in the common law's system: its germination, its judgment regulationsChapterⅢ:ChapterⅢexplores the theoretical foundation of laws in five aspects addition, such as the income and risk consistency, the danger control theory, company social responsibility and so on and deepens the theoretical and practical significances of this paper.Chapter V: In Chapter V, the author makes a theoretical and demonstrative analysis of the nature, the principle of imputation and types of tort liability. After nailing down that it is the operator's fault that gives rise to the personal and property damage to the relevant public, and the operator should bear the tort liability, the writer fully proves the reasons for our adopting fault liability and analyses the types of liability to be borne in the event of violation of the obligation of security, and focuses on the 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.About the nature of the tort liability, the writer points that the nature of the tort liability depends on the nature of the security, so that the liability of the violation of the security is mainly the tort liability, while in some particular situations, there is contractual liability. On the basis of above, the writer analyses the contractual liability。About the principal of the investigation, first, the writer fully proves the reasons for our adopting fault liability, then the writer further describes that the law adopts the principal of default understanding when judging the causality. Last, the writer describes the reasons of adopting the principal of default understanding when judging the causality from the concept, resources and functions of the principal of default understanding.About the types of liability, the writer points out direct responsibility, Supplementary infringement liability and their components, and focuses on the supplementary liability for compensation.Conclusion: The conclusion defines that it is significant to use them for reference in further improving the legal system of the obligation of security in China, with the comparative study of the obligation of security at home and abroad.