Essay On Obligations Of The Security Guarantee In Tort Law

As the scope of social communications and dealings expands in today's world, the limitations and inefficiency of traditional torts law are becoming increasingly apparent in the legal adjustment of various new types of social relations. Cases involving harm to person or property as a result of negligence of responsibility for precautious measures against possible danger due to business operators'or social activity organizers'breach of their obligation of safety guarantee are not uncommon in current judicial practices. Corresponding legal systems have been established to cover this development. For example, Germany has adopted the theory of general safety duty of care, Anglo-American law countries resort to the legal test of a reasonable duty of care set up through established cases, and Japan and France operate mechanisms similar to the German system. In China, the obligation of safety guarantee is explicitly defined in Article 37 of the Tort Liability Act. This thesis presents a comprehensive proposal after a thorough analysis of the significance and necessity of the establishment of the obligation of safety guarantee in the Chinese legal system as well as the deficiencies in related Chinese law frameworks on the basis of a comparative study of domestic and international legal systems.The main body of this thesis between an introduction and the conclusion consists of four parts. Part I deals with the relocation of the obligation of safety guarantee from the field of contract law to that of torts law, focusing on the protective function of subordinated obligation while touching upon the German theory of general safety duty of care and the Anglo-American test of reasonable duty of care. Part II discusses the features of the obligation of safety guarantee as a concept and its jurisprudence basis. Part III concentrates on a theoretical and empirical analysis of the principle of liability, constitutive requirements and tort accountability approach regarding the breach of the obligation of safety guarantee and due distribution of liabilities. This part also expounds the identification of fault and causality and the supplementary liability arising from harm by a third party as a result of the obligor's failure to fulfill the obligation of safety guarantee. Part IV offers a comprehensive proposal on the typification, origination, and application scope of the obligation of safety guarantee on the basis of a comprehensive introduction to related laws and an analysis of as well as comments on Article 37 of the Tort Liability Act. The originality of the proposal lies in its systematic review of the legislation, judicial interpretation and proposed draft concerning the obligation of safety guarantee and its reference to the concept of limited act duty of the Anglo-American legal systems.