Study On The Obligation Of Safety Protection For The Real Estate Service Company In The Residential Sections

Practice is the basis of theory while theory is the guidance of the pratice, the two influences each other, with the situation of no authoritative theory on obligation of safety protection and no unified Real Estate management law, only Real estate Management Regulation passed by the State Council and some provincial regulations, plus the reasons of legislative layer and technology , the trial on the safaty protection obligation of real eastate management company could not be relied by the same theroy, which results the mess in trial process , for the situation based on the reality, the author only makes an analysis in this paper on related problems of real eatate service company's safety protection obligation in order to give a help on the further study on this theory and provide a solid theory guide for judicial pratice to improve the legislation system.The paper is divided into three chapters except opening statement and closing statement.The first chapter discusses the basic statement about safety protection obligation of real estate management company. Part 1 gives the defination of safety protection obligation of real easte service conmpany in accordance with law and agreement, the company and its staff are entitled to ensure personal and property safety , otherwise assume the compensation of the loss caused thereof and also makes an analysis of jurisprudencial basis of this obligation and enumerates the lawful reasons. In part 2 the content of this obligation is analysed, which consists of the obligations of preventing itself infringe upon others and preventing and holding out the third party infrige upon others. Part 3 gives the present problem about the safety protection and states that the basic problem lies in the difference of the nature recoganization. Part 4 probes into the nature of this obligation considering it as legal obligation, with the particular agreement through contract unexcluded.The second chapter discusses the analysis of liability on violation of safety protection obligation. Part 1 discusses tort liability. First goes to the principle of tort liability, considering it to be principle of fault liability, then on discussion of composing components, the author adopts three elements theory namely the violation of this safety protection obligation and the facts of loss and the correlation of cause-effect. Part 2 makes an analysis on liability of breachment. Part 3 gives a discussion on faith-breach and tort liability's competition and integration. Part 4 describes the concrete assumption of the liability from two inspects: one is no third party intervention considering that the company assumes substitute liability, the other is with third party intervention, then through two cases the author elicits complementary liability following the lawsuit contructure establishement.The third chapter discusses the proposal on legislation and to make real estate service company evade risk. Legislation proposal is mainly about how to perfect relavent stipulation on Judicial interpretations on Compensation of Personal Injury and onus probandi in procedure. To evade risk ,the propasal for service company is to improve inner management and to establish insurance and fund system in order to protect both sides'benefits.