Font Size: a A A

Security Obligations Comparative Law

Posted on:2006-06-26Degree:MasterType:Thesis
Country:ChinaCandidate:Q Y LiFull Text:PDF
Abstract/Summary:PDF Full Text Request
The renowned British jurist Thomas Hobbes left a reverberating adage for posterity: " Human safety is the supreme law." Echoing with Hobbes's voice is a famous saying in the west:" Society begets law and vice versa." Social security is a fundamental factor consistently attached to law. Human need for security is the basis, and a prerequisite, which enables them to get together into societal communities to live and reproduce. To materialize such a need for security, they seem to be endowed with kinds of intuitions to lead their life according to certain regulations, without which a sense of insecurity will arise. In an era when ordinary duty of care has come to be the " incubator of rules," it is difficult to determine the impropriety of acts, or to indemnify for injuries, hence a lack of basis sense of security. The thesis employs as its grounding an introduction to the ordinary duty of care stipulated in the laws of such countries as Germany and France in the continental law system , and Great Britain and America in the Anglo-American law system. It aims at a detailed discussion of China's safeguard obligation, specifically, its obligation sources, the doctrine of liability fixation and the forms of tort ions liability. With this comparative study of the ordinary duty of care practiced at home and abroad, it is hoped that China's rules concerning safeguard will make the best of the more developed ones and be changed for the better. This thesis falls into four parts, each of which is given a summary about their contents as follows.Focused on a generalization of China's safeguard obligation, chapter one delineates mainly about such aspects as the concept, sources, genres and instauration foundation, in terms of the theory of law .Chapter two emphasizes on a theoretical demonstration of safeguard duty of care in Germany, the safeguard obligation in France and the duty of care in Great Britain and America. There is great similarity among these systems.First comes the study of Germany where the scope of duty of care has extended from a "traffic safeguard obligation" to an "ordinary safeguard care of duty." The scope of tort law in German's legal system was too narrow while that of the law of contract too wide. In view of this fact, and to make up for the inadequate tort law ,contract liability has been extended, thuscomprehending into the judgement of the law of contract personal injury inflicted during the concluding period of a contract, and injury inflicted as a result of the violation of duty of care by the obligation on the third party ,who lacks contractional relationship but is ,all the same, closely related to the obligee.Then it is to introduce French safeguard obligation, which has undergone a "contractual -to - tortions". Transference under the influence of, so to speak, "Safety First "put forward in Anglo-American law system.The last case study in this chapter centers on the Anglo American law's theories on duty of care: its germination, its judgment regulations, and, to be more specific, a distinction made by American landowners concerning the transgressor, grantee, and invitee, three sorts of people coming to their homestead.Chapter three propounds doctrine of liability fixation in case of violation of safeguard obligation. First, with a contrast between rules of fault fixation and injuries, the former is proposed for China in the event of violation of safeguard obligation. After then, the two judgment criteria: the subjective negligence standard and objective negligence standard. They are delineated with an explanation, as to a proper understanding of "reasonable scope" laid down in "the interpretation of personal injury indemnification." This chapter leaves, at last, room for the holding of causal relation by omission, which consists of two subdivisions, A comparison is utilized in the first subdivision to underlie the mire singly extending scope of application for tort ions liability by error of omission, pointing out certain loopholes in China's regulation on tort by omission. What follows is the dichotomy of causal relation homologation, i.e., holding of de facto relation as well as that of legislative causal relations. Law of substitution is suggested in the holding of the latter and the economic tort law. Economic tort analysis law is effective in by passing the difficulties in the holding of causal relation, transforming it to the holding of fault.The fourth chapter relates specifically to liability forms in the event of violation of safeguard obligation. Difference in the nature of safeguard obligation entails different liability forms. To be precise, there are fault for treaty, for a breach of contract and for tort .It also can be divided into direct or supplemental liability. Besides, the difference between the direct and supplemental liability as well as some regulations on the latter are also made clear.Conclusion is the part where measures of improving China's safeguard obligation are put forward, for example, an "ordinary provision plus specific instances" stipulation, and the call for the promotion of liability insurance. Meanwhile, there is finally in this part an outlook on the future of China's development in safeguard obligation.
Keywords/Search Tags:safeguard obligation, ordinary safety duty of care, Duty of care, supplemental liability
PDF Full Text Request
Related items