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Study On The Safety-guard Obligation In Public

Posted on:2009-01-23Degree:MasterType:Thesis
Country:ChinaCandidate:L ChenFull Text:PDF
GTID:2166360242987586Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The safety, including the personal safety and the property safety, is the foundation of people enjoying the interests of life, property, freedom and equality. One of the important functions of law is to protect the safety. The development of science and technology not only brings convenience to people, but also places them in danger. Accidents of personal or property damages caused by the potential danger in public became more and more. This kind of risk can be accepted during the social development, so the society won't prohibit the operating activities or other social activities. However, people can not eliminate the risk by themselves'effort, then most countries created the safety-guard obligation by precedents on the basis of distributive justice. The system of safety-guard obligation requires that the operator of public should bear the duty to prevent dangers. With the fast development of the legislative activity of Civil Code in China, the Property Law has been enacted. Today, attention is being focused on the draft of the Tort Law. The system of safety-guard obligation is one of the most controversial systems. This thesis analyzes the safety-guard obligation in public combining cases by four parts.The first chapter introduces the history of the safety-guard obligation system, then presents the definition of it. The safety-guard obligation requires people who cause risk to other people by social interaction pay reasonable care to this risk, take necessary measures to eliminate or prevent the risk, help the victim in danger and prevent further loss. The system of safety-guard obligation has solid theoretical foundation, such as the income and risk consistency, the danger control theory, the trust theory and the social cost theory. This four theories can be integrated when analyzing the rationality of the safety-guard obligation. This chapter analyzes the factors of the safety-guard obligation in the end. The subjects are those operator or organizer of social activities who created or maintain the risk. The protected objects are general, but still have limited scope. The scope of protected objects varies in different kind of safety-guard obligation, for example, the scope of protected objects of operator's obligation is wider than that of the organizers of social activities. Different kind of safety-guard obligation has different content. The subject of the safety-guard obligation should ensure the things in his control have no danger to other's personal and property safety. If the risk has already existed, the subject should warn others. The subject also has to prevent the foreseeable tort or crime committed by the third party, and to provide timely rescue to the victim of the tort or crime.The second chapter discusses the nature of the safety-guard obligation. By inspecting the related system in other countries'law, analyzing the sources of the safety-guard obligation, and pointing out that the safety-guard obligation can only origin from two sources, law and the principle of good faith, the thesis reached the conclusion that the safety-guard obligation is active legal obligation on the tort law.The third chapter elaborates the liability of violating the safety-guard obligation. This thesis pointed out that the torts of violating the safety-guard obligation adopt the fault liability, and the fault can be presumed. When the subject of the obligation violates his obligation, he is presumed to have fault. If the conduct of violating the obligation has causal relationship with the protected object's damages, the subject should bear the liability for tort. If the damages is caused by the things that dominated by the subject, he should bear the direct liability, and if the damages is caused by third parties, the subject should bear the supplementary liability. The liability of tort can discharged when the existence of excusatio is proved, such as the agreement of the victim, the fault of the victim or force majeure.On the basis of the above discussion, the fourth chapter analyzes the legislation situation of the safety-guard obligation system in China, and gives some advice. The article 6 in Interpretation of Many Problem of Applicable Laws in Connection with Hearing Personal Injury Compensation Case issued by The Supreme People's Court of the PRC briefly provides the safety-guard obligation. But there are many limitations with the provision, such as the subject and content of the obligation are not clear, the doctrine of liability fixation is not provided. There is fierce controversy on the form of liability provided by the article 6. This thesis introduced comparative laws on the focus of our country's legislative problems, and tried to give solutions.
Keywords/Search Tags:Public, the Safety-guard Obligation, Legal Obligation, Presumption of Fault, Supplementary Liability
PDF Full Text Request
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