Research On The Operator's Safeguard Obligation

With the market economy developing and society progressing, exchanges between people become increasingly complex and are constantly deepening. Cases of infringement on the consumers, potential consumers and other persons entering the premises increases and study on the operator's safeguard obligation draws more and more attention. The sixth item of Interpretation of Some Problems Concerning the Applicable Laws in Trial of Personal Injury Cases by the Supreme People's Court in 2003, states the operator's safeguard obligation for the first time. But the statement is rather general, the scope of the legal subject narrow, the definition of legal character not clear, the scope of business places and object of protection vague, and criteria of breach of the operator's safeguard obligation and other related issues not mentioned.Theoretical study on the operator's safeguard obligation has a late start in our country. On the basis of the comparison of theories in various countries, we regard open and continuing dangers, legal provisions, and previous acts as the source of security obligations, drawing on the interchange security obligations of Germany. The legal foundation of the operator's safeguard obligation is made up by requirements of the risk-control theory, requirements of balancing risks with earnings, legal expectations of the operators, social responsibilities of the corporations, and requirements of substantive equality.Whether the operator breaks the safeguard obligations should be judged through considerations of the scope of the legal subject of the operator's safeguard obligation, the scope of places, the time limit of responsibility, the scope of rights-protection, and the content of obligation. The responsible subjects of the safeguard obligation are citizens, corporations, or other social groups with actual controlling ability. Accordingly, the objects of protection include consumers, potential consumers and other persons entering the premises. At the same time, it must be made clear that not only personal rights and interests, but also property rights and interests, should be protected. When determining the content of the operator's safeguard obligation, we should comply with the principle of individual-case judgment, principle of appropriateness, and principle of proper expectation. The operator's safeguard obligation can be further divided into obligations of business place, equipment and supporting facilities, obligations of service management, and obligations of preventing and stopping third party infringement.The doctrine of liability presumption should be adopted in determining whether the operator has breached the safeguard obligation. If the operator can prove that there is no fault on his part, he may be exempted from responsibility; otherwise, he may be regarded as guilty and should compensate for injury. Direct responsibility should be taken when injury is made as a result of unfulfillment of safeguard obligations of premises, of equipment and supporting facilities, and of service management. Supplementary responsibility should be taken when injury is made as a result of failing to prevent third party infringement. Liability of infringement is determined only when the breach of operator's safeguard obligation includes the four constitutive parts: illegal act, actual infringement, causal relation, and subjective fault. And direct causal relation should be used when causal relation of safeguard obligations of premises, equipment and supporting facilities, and obligations of service management is being identified. However, corresponding causal relation should be used when causal relation of safeguard obligations of preventing third party infringement.We hope to eliminate the confusion in the application of laws and the weakness in operation in the judicial practice in our country through a further study on the operator's safeguard obligation. In this way, we may promote the theory of the operator's safeguard obligation, create a more secure environment and provide more comprehensive legal protection for consumers, potential consumers and other persons entering the premises.