On The Obligation Of Security Of Tort Law

With the development of society and the increasing of danger, the law provides obligation of security for the effective protection of personal and property security and the expansion of obligation of omission of tort law. In December 4, 2003 the Supreme People's Court promulgated the Interpretation for Certain Issues on the Applicable Law Concerning Hearing the Case of Personal Injury Compensation, the interpretation of section 6 provides the assumption of obligation of security. The interpretation makes outstanding the human character and human rights and highlights the humanity and is for the seek of protection of the vulnerable groups. It causes much controversy in law circle. Law circles have not yet made consensus of the concept of the obligation of security, the legal basis, the nature, the specific content as well as the obligation of breaching the obligation of security, which is necessary to explore further.This text is divided into three parts. The first part discusses the origin and the development of the obligation of security, which is to adapt realistic circumstance, founded on the basis of the social development level and in response to considering the balancing of interests. There are different interpretations of the obligation of security. The obligation of security is that the subjects of opening or sustaining the dangerous source fulfill reasonable obligations of security, foresee reasonable risk and take measures of anticipated possibility to prevent a third person suffering damage to person or property.The second part discusses the legal natures and the legal basis obligations of the security from the perspective of comparative law. First, the subject analysis's the reasons and reasonableness. The obligations of security arises from cost-effective theory, interest theory, reasonable risk of trust and control, social responsibility theory, social development and the requirements of the concept of substantive equality, etc. Second, on the legal nature of security for the qualitative, I think that the obligation is the one of the tort law.The third part is the thoughtful line about the obligations of security. First of all, the content of the obligations of security can be analyzed from aspects of hardware and software facilities offered by the obligor. For analyzing whether the necessary obligations are fulfilled, the limit of the obligations of security can be judged by whether the measures of warning are effective, whether the measures of the prevention and control of the danger are appropriate, and whether the measures of succor and preservation of evidences are ample. Second, for reconstruction of the tort liability of the obligations of security, the dichotomy of objective and subjective elements should be advocated. The objective elements include the illegal activities, the damage facts and the causalities between the illegal activities and the damage facts. The subjective elements are the faults. And then, the liability of the breach of the obligation is analyzed specifically in this paper. The liabilities of the obligations of security, provided by the Interpretation, include mainly the direct liabilities and the supplementary liabilities. For the direct liabilities, there is no controversy, but as the supplementary liabilities have much controversy. it is necessary for a theoretical analysis from the effect and the emergence of the supplementary liabilities. Through the question of the existing supplementary liabilities and the analysis of the existing theories, the author deems that, in the circumstances of the torts caused by third person and the torts caused by the obligor's faults, the obligors should bear the tort liabilities without intentional liaison, according to the casual forces or the faults.