Font Size: a A A

Research On The Safety Obligation Of Proprietor In Public Place

Posted on:2011-06-13Degree:MasterType:Thesis
Country:ChinaCandidate:H Y WangFull Text:PDF
GTID:2166360305957260Subject:Law
Abstract/Summary:PDF Full Text Request
With the rapid economic development, dangerous activities are increasing. Economic prosperity brings a lot of advantages, but at the same time, it also brings so many disadvantages. With the awakening of people who are aware of their rights, security problems in the public places, especially in business service places are increasingly concerned by people. Meanwhile, disputes involving managers who breach safeguard obligations in public places are increasing. This paper analyzes safeguard obligations of managers of public places and takes some advice for improving the system of safeguard obligations combined with "Tort Liability Act" and using comparative analysis.Besides the introduction and conclusion, the paper is divided into four chapters. The paper is about twenty thousand words. The following are four chapters:Chapter one is about legislative analysis and theoretical basis related to safeguard obligations of managers of public places. Firstly, it introduces the origin and development of safeguard obligations in typical Civil Law and Common Law. Then, it introduces the development of safeguard obligations in China. The general duty of caring is the theoretical basis of our national safeguard obligations. The proposed safeguard obligations are based on the level of social development in China and they are improved continuously in judicial practice. Secondly, in section II of this chapter, it introduces the theoretical basis of safeguard obligations in public places and analyzes safeguard obligations from theory of income consistent with risk, risk control, reasonable reliance, the total cost savings of society and substantive equality concept.Chapter two is about the definition of safeguard obligations of managers of public places. This chapter is divided into three sections. In section I, it defines the concept of safeguard obligations. This section lists the different definitions of safeguard obligations, which are proposed by different scholars, such as zhangXinbao, YangLixin, LiangHuixing and LiuShiguo. Finally, the author thinks the safeguard obligations mean that according to some legal relationship, managers in public places have the duties to take care of and secure personal and property safety in reasonable extent. If managers in public places violate the safeguard obligations, they must bear the responsibility of compensation. It also points out that safeguard obligations should be a dynamic system. Passive security protection should gradually turns to active security protection with social and economic development and strengthening of people's awareness of their rights. In sectionâ…¡, it discusses the nature of safeguard obligations. There isn't unified understanding to safeguard obligations in domestic and foreign. After analyzing advantages and disadvantages of collateral obligation and legal obligation, author thinks that the nature of safeguard obligation should be defined as legal obligation with exception to contract obligation. After making contract between two parties, they can choose responsibility of contract or tort according to Article 122 of Contract Law when exists contractual relationship. In sectionâ…¢, it defines the content of safeguard obligations of managers of public places. When there is no third party infringement, managers of public places should be responsible for equipments, facilities and service management in places which they can control. When there is a third party infringement, managers of public places should bear safeguard obligations before, during and after the period of the infringement. At the same time, law should make flexible provisions about safeguard obligations according to the differences in management scale, economic strength and industry attributes.In the third chapter, it analyzes responsibility which managers of public places should undertake when they violate safeguard obligation. This article mainly discusses safeguard obligations in the field of Tort Law. In the sectionâ… , it analyzes the principle of responsibility of safeguard obligations. The author thinks that safeguard obligations should apply the principle of fault liability or the principle of presumption of fault as the method of fault identification and enforce inversion of evidential burden because, on the one hand, this can urge obligor to take positive measure to prevent the occurrence of damage; on the other hand, it is beneficial to victims in a weak position and this is suited to our countries'economic development situation. In the sectionâ…¡, it analyzes the essential elements of tort liability when managers of public places violate safeguard obligations. In the sectionâ…¢, it analyzes the types of safeguard obligations, when the managers of the public places violate safeguard obligations according to Article 37 of Tort Law. It mainly discusses that managers of public places should take direct and added responsibility if they can not fulfill security obligations when the third party tort other people's interest and proposes that what kinds of problems should be noted when judge apply additional responsibility to deal with cases in judicial practice. The section IV analyzes when the damage is caused by the act of the third party but it has been offset or the fault of the victim himself or the damage is caused under victim's agreement, managers of public places may be exempted from the duty of security. Chapter four is about judicial practice of safeguard obligations and some proposition to modification. Firstly, it analyzes some problems, such as how to deal with when meet the competent of contractual tortuous liability and privilege tortuous liability, reasonable limits of safeguard obligations, allocation of the burden of proof an safeguard obligations in private places. Secondly, it suggests that we take the enactment of Tort Law as an opportunity to improve other laws in order to coordinate with Tort Liability Act and improves the system of safeguard obligations to provide comprehensive assistance for victims. Accordingly, this paper makes the following advice:first of all it should clearly regulate that operator must take responsibility for the security of business place in Consumer Protection Law; second, it must formulate relevant industry standards and strengthen the industrial legislation; third, it should take the burden of proof in reverse when operator violates the safeguard obligations; finally, the author suggests that it regulates safeguard obligations of the private place in Judicial interpretation.In the final conclusion, it points out that we have been established the framework of system of safeguard obligations. Safeguard obligations have been regulated in the different laws, such as in Tort Liability Act, Consumer Protection Act, Property Management Law, and Railway Law. However, these provisions are still inadequate and need to be discussed deeply in the circle of theory. The author hopes that the system of safeguard obligations can be improved in the future Civil Code.
Keywords/Search Tags:Public Places, Safeguard Obligations, Legal Obligations, Added Responsibility
PDF Full Text Request
Related items