Research On Safeguard Obligation

Human beings' survival and development can't go without a safe social environment. Human safety is the supreme law. With the development the society, dangerous practices are becoming more and more. To protect victims' personal and property rights and interests, all countries have established the safeguard obligations according to the honesty credit principle while considering the social development and moral requests. Without a consensus on the concepts, basis, nature, and liability nature of the safeguard obligation home and abroad, there are two schools as to the development of the safeguard obligation. Based on the two opinions, this thesis puts forward a new approach.This thesis is divided into five chapters. Chapter one first casts a brief review and analysis of the historical development of the safeguard obligation home and abroad. Then different definitions about the safeguard obligation are offered. Though different, the definitions are almost the same in essence. The safeguard obligation is the person who can bring danger to others because of social contact and social interaction pays enough attention to the danger reasonably and takes necessary measures to eliminate or prevent the danger, offer aids after the danger to prevent the expansion of the damage.Chapter two analyzes the theoretical basis of the safeguard obligation. The theories based on economics include: profit theory, danger control theory, danger share theory and cost economization theoryThe theories based on sociology include: conception of safeguard human rights, honest credit principle, trust principle and the anticipatory theory.Chapter three explores the sources of the safeguard obligation. The disagreement among the scholars about the sources is due to the different concepts applied to it. Based on this, the sources are pinpointed: stipulation of law, contract agreement, honest credit principle and previous behavior of actor. The nature of the safeguard obligation in chapter four is the focus of this paper. The nature is the basis of the study. Comparative approach is employed to analyze the nature in German law, French law, Japanese law and Anglo-American law and home scholars' opinions are introduced and appraised. The understandings of the nature and the approach to a series of problems often lead to the domination situation of the contract law and the tort law. In view of this, I suggest the unity of the obligation of protection in the accompanying obligations in the contract law and the safeguard obligation in the tort law to establish a new liability system which is quite different from the traditional system of contract responsibility and tortions liability.Chapter five is my thoughts on the establishment of unity in the civil law. In view of the doctrine of unity protection relationship in German law, the necessity and feasibility of the unity in civil law are explored. Critical comments are made on the safeguard obligation in China's legal system. Weaknesses of the solution "centered on accompanying obligation, to extend the contract obligation" are pointed out. And the historical, legal and realistic conditions of the unity of are talked about.