| Along with the fast and healthy development of Chinese economic society, various torts of the faliure to fullfill the duty of safty of protection increase day by day. It has been the urgent work for the legislation and judicial work to make clear those torts and corresponding responsibilities. Due to complex and diversified realistic life and constant development and change, those torts violating the security obligation also face problems advancing with time. How to confirm those torts has also been a difficult research topic in the practice circles and theoretical circles. The tort of the faliure to fullfill the duty of safty of protection is a new tort liability in our country, which is the research emphasis in theory circle. This system was established through the judicial interpretation. Then, further improved in the TORT LAW OF THE PEOPLE’S REPUBLIC OF CHINA (July,2010). We should fully recognize the immaturity in the research of theory circle, especially, on the doctrine of liability fixation, constitutive requirements and liability Forms.There are four chapter in this paper. In chapter1, the duty of safty of protection are summerized, including the conception, content, function and source. The duty of safty means there is much danger to the others’ personal security and properties safety in the society, related responsible party should fufill the duty of resonable care and take necessary measures for preventing or elimination of dangers, and taking the effective measures to avoid the injury after the danger happened. The forms of the duty of safty of protection are very extensive:the duty of disclosure, the duty of public summons, the duty of prevention, the duty of protection, the duty of rescue. There are three factors:the limited duty of resonable attention make the obligor take the positive actions obligation, which is between the certain persons. The content of the duty of safty of protection means, on the one hand, meeting the safty request of hardware equipments and personnel allocation in activity place, on the other hand, activity process. The later is the prerequisite to the former, the former is the concrete performance requirement to the later. The duty of safty of protection has two sources of legal regulations and contract engagement, to the fomer, there are the Interpretation on the Matters of Law Application in the Trial of Personal Injury Compensation Case,Issued by the Supreme People’s Courtthe, the TORT LAW OF THE PEOPLE’S REPUBLIC OF CHINA, the Consumer Protection Law of China. The later has many formers, for example, Passenger Transport Contract. Chapter2introduces the theories of the duty of safty of protection, such as profit-rewords theory, the theory of risk liability, the theory of risk liability, human rights theory and the theory of social total cost savings. Those theories fully argues the necessity and importance of the theory of the duty of safty of protection, as the theoretical guidance to the theory.Chapter3discuss the detail of the sorts and identify of the duty of safty of protection. The contents of sorts includes the direct liability, vicarious liability, supplementary liability. The doctrine of liability fixation has four facters:1, actions that faiing to fullfill the duty of safty of protection;2, infringement of the rights;3, causality between the actions and infringement of the fact;4, fault.Chapter4,Empirical analysis on the related caes towards the theory and judicial practice, it demonstrates the liability of the faliure to fullfill the duty of safty of protection, but differential treats according to the degree of fault, Meanwhile, elaborating some personal views begin with the common legislative views and judicial practice. |
