The Obligation Of Security In Tort Law

The obligation of security has become the focus both in the tort law and the law of contract. The complexity of the obligation of security in general sense is attributed to the interaction and penetration of the tort law and the contract law. The author holds the opinion that it is more rational to confine the obligation of security in the tort law field in narrow sense. According to the provisions of Article 6 in Interpretation of Some Problems of Applicable Laws in Connection with Personal Injury Compensation Case Issued by The Supreme People's Court, the article discusses the concept, theoretical foundation, nature, source and liability of the obligation of security in tort law.There are 4 chapters besides preface and conclusion.Chapter 1 includes three parts. The first part mainly introduces the concept of the obligation of security. The second part defines the nature of the obligation of security by researching the sources of it. The author holds that the obligation of security in narrow sense is the obligation of security in tort law. The nature of the obligation of security in tort law is described as the legal obligation. In the third part, the author discusses the basis of the obligation of security.Chapter 2 introduced producing and developing of the obligation of security. The obligation of security is discussed from the perspective of comparative law, including similar regulations in some countries such as the transaction safety obligation in German, security liability in France and the care obligation in England and the United States. Learning their difference is good for our mastering in the same legal issue.Chapter 3 is on the tort liability of violating the obligation of security. The author discusses the doctrine of liability fixation about the cases of violating the obligation of security and holds that doctrine of presumptive wrongs should be suit for such cases. Then, the article analyses the constitutive requirements of the liability for violating of the obligation of security. At last, the author analyses the three forms of tort liability of the cases about violating the obligation of security, and focuses on the supplementary liability. Chapter 4 is about the legislative advice of the obligation of security. The author gives some legislative advices of expanding the applicable scope of the obligation of security in our country. Then, the author points out that it is unreasonable to apply the supplementary liability and suggests when damages are caused by the third party the obligor and the third party should undertake the joint and several liabilities instead of the supplementary liability.