Research On The Safeguard Obligation Of Public Place Managers

Safety is the common pursuit of human beings. Our survival and development cannot go without a safe social environment. With the rapid development of society, our financial status become better, but we still feel unsafe, because risks in daily life have rapidly increased. In recent years, disputes involving public places managers who breach safeguard obligations in public places are increasing,for which reason safeguard obligation raised.The earliest file mode of safeguard obligation appears in Article 6 of “several issues concerning the interpretation about the trial of personal injury compensation ”, in the accommodation and catering,entertainment and other business activities or other social activities of person,legal person or other organizations,who do not bear the obligation within a reasonable scope causes others suffer from personal injury, when injuried person ask for a compensation,the court shall support, the earliest stated mode appears in Article 37 of Tort Law, in places such as hotels, malls,banks,railway stations, entertainment places, Public places managers and mass activities organizer shall bear tort liability if they do not fulfill their obligation. If damages caused by the third party,the third party shall bear the obligation, but if the manager or organizer do not bear own obligation, they shall bear the corresponding supplementary liability. The emergence of provisions make up the blank about the obligation of safeguard obligation, so the court can apply directly.Due to the short development,inflexibility, this system meets many problems injudicial practice. Here is a case: A is a theft, he went into Place B for the intent to steal B’s property, Shall B bear the obligation to protect A ? Different courts support different ideas. Some think B should not compensate A’s loss, because the safeguard obligation is consistent with the risk an income theory,A will never lead income to B, but damage B’s right, so B should not compensate. Some one think A is unlucky to slip,but others who step into the place will also slip and damaged, because of B’s not fulfill its obligation.Another case: when there is a third party shall compensate, manager or organizer only bear corresponding supplementary liability, which will make the application meets some difficulties, since corresponding means the third party and manager bear each obligation corresponds to their own fault, but in many cases, fault comes from two party leads to the loss, it is difficult to make “corresponding ” come true, under this circumstance, court do plus or minus on the base of fifty percent.The last case: B is a luxury residential property, with training facilities, nearing B there is a ordinary A residential property without training facilities. For the intent to exercise, resident of community A go to B, although B not allowed other person except B’s resident enter, unless being registered. Since it is very difficult to determine which one is person from other community, ultimately not registered. One day resident C comes from community A injured in community B, because of the aging facilities. The key point of this case is whether community B is public place. Public places mean there are less limit on person who enter. Some court think the unique character of public places is no specific on subject. Community B do not make limit to persons who entered actually, so B is a public place and C have the right to enter, so B shall protect C. Some one think C do others a favor, if we ask B to bear the obligation, it is unfair, B will not provide facilities for other resident in future, at last, the demand of exercise will never be met. Some court think since B announce that person from other resident shall not be allowed to enter, B is not public places, which means C have no right to enter. B do not need to bear the obligation.This paper will analyze safeguard obligations of public places managers from theprospect of Tort Liability Act Article 37.This thesis will be divided into five parts, aiming at a through analysis of basic problems in the field of torts liability originating from the breach of safeguard duty, such as the subject, the object, the content, the accountability.The beginning of this paper leads out the theme-safeguard obligation. In this part, I will describe the improper aspects in judicial practice, the analysis method, the aim of this paper, main resource of this paper, summarize the achievement in this field, such as the point of YANG LIXIN, WANG LILING.The first chapter is the brief introduction of safeguard duty. By integrated comparative method, analyzing the history of safeguard duty. Since safeguard duty developed on the basis of Verkehrspflicht and due care, it is essential to survey modes and reasons of the development of this two institutions, which can provide some idea to improve our system.In this chapter, I will introduce the content, famous cases of this regulation in civil law system and common law system.The second chapter is mainly about the subject and object of this duty. Topic of this paper is public places managers safeguard duty, but relative statutes have no words about the definition of the subject, whether the object includes the illegal incomers is still uncertain in academic circle.The third chapter is the substance. Since less statutes stipulate the substance except the Tort Law, the definition of this duty lies in judicial free adjudication, however, there still exist some criteria. This chapter will rely on the criteria to define substance and discuss which duty includes. Although it is knowing to all that, substance based on situation, but from my point of view, this regulation still has some basic substance.The forth chapter is about the accountability. This chapter will divide into two parts,based on whether there exists infringement from the third party or not. Law of Tort Liability choose the fault principle, but some experts uphold the presumptive principle, discussion will surround the necessity of fault principle. Highlight of this chapter will be problems arouse from infringement-related supplement liability and mine suggestions.The last part is Conclusion. In this part, I summarize the foregoing paragraph, then coming to a conclusion, answering the question I put up before and introduce the highlight and distinguishing feature.