On The Legislation About Safeguard Obligation Of China From The "Nan Ning 7·9 Case"

With the prompt development of economy and society, two kinds of cases about of safeguard obligation happened frequently. One was the duty body didn't adopt security measures to trespass upon the rights of personal and property, the other was caused by the third body when the duty body didn't adopt the front measures. Because the traditional law didn't stipulate such tort type, so it posed a challenge to our law. In the first cases, if there was a contractual relationship between the victim and the defendant, it seemed that we could use non-fault liability to deal with the parties, but the right of the victim was still unable to get full protection, such as mental damages. For the second cases, the "Contract Law" is powerless. Because of the relative nature of the contract it was difficult for the defendant to bear the responsibility for the third body. When facing such cases, different courts would make different decisions following different stipulations. To some extent, this not only disturbed the unity of judicature, but also unhelpful to the protection of personal and property right. So the Supreme People's Court promulgated a judicial interpretation in 2004 called "Explanation about Certain Legal Questions on Personal Damage compensate Cases" , which first stipulated the safeguard obligation of some persons such as operators and organizers, expecting to provide a uniform basis, distribute society justice and protect human right .But there were still lots of problems.In view of this, the author used comparative and positive methods to discuss the conception, original, legal basis and constitution of legal liability about the safeguard obligation from a influential case, especially analyzed the constitution of tort liability of the breach of safeguard obligation emphatically, expecting to be helpful to the judicial practice.The text is divided into five chapters besides the preface:The chapter one is the basic facts and verdict of the influential case, which caused the thought of the safeguard obligation.The chapter two discussed the content of safeguard obligation in our law. In this part, the author expounded the conception, original, legal basis of the safeguard obligation in detail. The chapter three which was the core anatomized the legal liability of violation of the safeguard obligation including breach of faith and tort, especially analyzing the constitution of tort legal liability of safeguard obligation emphatically.The chapter four made a criticism of the forefront case.The last chapter is some reflection about the safeguard obligation in our current law, and pointed out the legislative and judicial shortcomings.