On The Operators' Obligation Of Safety Guarantee

The operators'obligation of safety guarantee is close to operating activities and it is the operators'special obligation, which means operators in operating places have duty in law to protect the personal security and property security of consumers, latent consumers or somebody else reasonably entering service places.At present, with the development of society and economy in our country, legal relations in social activities are complicated. However, because of posterity and undistribution of law, current legal norms can not resolve some questions new. In recent years, operators such as shopping malls, banks, hotels, etc which are engaged in operating activities or other social activities cause more and more damage to the personal rights and property rights of consumers and other social actors because of violating the duty of safety guarantee. At the same time, more and more studies about operators'obligation of safety guarantee have been done in law field. However, there is still no unanimous conclusion during these arguments. In addition, because of fragmented norms and increased cases about operators'obligation of safety guarantee, there are phenomena that judges have different understanding about obligation of safety guarantee and courts give judgments with different reasons and results. All of these greatly affect the authority and justice of law and are against the rule of law of judicature unity. It can not offer reasonable remedies for social members. As a result, the seriousness of law is queried.This article preliminarily researches and studies the following questions about the operators'obligation of safety guarantee: concept of it, comparison of laws about it in some countries, legal nature of it, liability nature of it, theory of liability of it, forms of liability and defenses to liability of it. We can make much better use of the theory of obligation of safety guarantee in judicial practice in order to protect the rights of victims and improve the system of obligation of safety guarantee in our country.This article is divided into four chapters:Chapter one mainly addresses the concept, content and jurisprudential basis of operators'obligation of safety guarantee. Author concludes the concept of operators'obligation of safety guarantee and thinks the jurisprudential basis that the operators in service places taking burden of the duty of safety guarantee is common duty of safe care in German law. The main content of the operators'obligation of safety guarantee is that the operators in operating places should guarantee the personal security and property security of obligees and take burden of possive do and passive omission corresponding with them. The specific content of the duty contains the following aspects. The first is that the buildings, facilities in operating places must be standardised, safe and must be constantly checked, maintained. The second is that the corresponding jobs must be equipped with trained, qualified workers. The third is that operators must take measures to prevent consumers from invasion that is from external unsafe factors. The fourth is that operators must take the duty of prompting, explaining, persuading and assisting for the unsafe factors that can not be resolved timely. The violation of the duty includes three situations: the first is the operators'pure omission that operators don't create a very safe consuming circumstance; the second is that the service itself and facilities that operators offer are unsafe, which cause damage to consumer; the third is that operators don't earnestly fulfill the duty of precaution and prevention to illegal violation because of passive omission.Chapter two is mainly about the comparison of the operators'obligation of safety guarantee in some countries and inspiration it brings to us. The paper points out, the differences of legislation and judicial practice about obligation of safety guarantee between common law legal family and civil law legal family originated from different characteristics between contract law and tort law in two legal families. In this part, several proposals for constructing legal system of the operators'obligation of safety guarantee in our country are presented through comparing, concluding the legislation and judicial practice about the obligation of safety guarantee in Germany, France, Japan, UK, USA and analyzing the legislation and judicial interpretations relating to the obligation of safety guarantee in our country.Chapter three elaborates the legal nature of operators'obligation of safety guarantee. Through defining and commenting two doctrines of contractual duty and legal duty existing in theoretical circle in our country, the paper addresses that the range of the operators'obligation of safety guarantee is very wide and it is necessary to differentiate various situations to define its nature. Operators'obligation of safety guarantee should be a legal duty in principle. The intent of defining it as a legal duty is to weaken the universal use of contractual liability rather than to supersede the contractual liability with tortious liability.Chaper four states author's imagination about setting up the liability of the operators'obligation of safety guarantee. First, the liability nature of violating the duty is analyzed. In order to protect victims, it should be resolve in tort law province first when operators cause damage because of violating the duty. Only when there is no statutory provision and there is the obvious agreement of parties in contract is it contractual liability. Second, the theory of liability of violating the duty in tort law is analyzed. The paper points out that it should be fault liability when operators are against the duty and the principle of presumption of fault should be used in defining fault. Third, the types of the liability of breach of the duty including direct liability, substituted liability and compensated liability are analyzed combining with cases. At last, the defenses to the liability of breach of the duty are addressed in this part.Rapid development of economy brings us aboundant material life as well as lots of dangers and hidden troubles. The arising of the operators'obligation of safety guarantee originated from this realistic need. The construction of the system stimulates operators to improve qualities of products and service and ameliorates circumstance, which is beneficial to maintaining social order and protecting consumers'personal security and property security. However, legal wisdom has not produced full function it should have in this new legal system. We can explore the huge potential of it. Author hopes that the preliminary discussion in this article will stimulate scholars to explore more in-depth, with a view to further improve this legislation and to solve realistic problems better, so that social justice can be promoted and distributed reasonably.