Research On Safety-guard Obligation

In recent years in China, in some public places, such as hotels, restaurants, dance halls and banks, body damages have frequently happened to consumers due to lack of safety protection. Because there is no unified law to follow, the court decisions made by different judges are often different about these similar cases. Under such circumstances and based on Verkehrspflicht in German law, the Supreme People's Court in 2003 announced Interpretation of Many Problem of Applicable Laws in Connection with Hearing Personal Injury Compensation Case the article 6 of which provides the safety-guard obligation. But there is much limitation with the provision and fierce controversy among scholars. This thesis makes a systemic discussion on the safety-guard obligation of our county from a comparative law perspective and tries to give solutions.This article includes four parts. The first part is about the basic issues of safety-guard obligation. The section 1 defines the concept of safety-guard obligation. The section 2 analyzes safety-guard obligation's five basis of jurisprudence: risk control theory, making profit theory, social cost theory, social obligation and essential equality theory. The section 3 defines the content of safety-guard obligation in hardware and software.The second part introduces the birth and development of safety-guard obligation in the civil law and common law and expounds corresponding systems in the two legal systems comprehensively including Verkehrspflicht in German law, obligation de securite in French law, and the obligation of reasonable care in the Anglo-American law.In the third part, the author defines that the nature of safety-guard obligation mainly is statutory infringement obligation with convention obligation as exception.In the fourth part, combining the specific circumstances of our country, the author makes a systemic discussion on the safety-guard obligation of our county from a comparative law perspective. The content is as following: the bodies of the legal relationship, principle of imputation, causal relationship and liability. The author's opinion is as following: the torts of violating the safety-guard obligation should adopt fault liability, and fault cannot be presumed; the rule of judging the causation between the act of omission and the damages of the plaintiff is that If the Care exists, the Result won't appear; supplementary liability is a rational style of liability for its balance between the interests of conductor and the interests of plaintiff.