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On Tort Liability Of Breach Of Duty Of Care In Security

Posted on:2008-07-23Degree:MasterType:Thesis
Country:ChinaCandidate:Q ZhengFull Text:PDF
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The safety guarantee duty is a legal obligation resourcing from the doctrine of good faith and honesty. It is made according to the demand of social economy and moral care, and is the result of humanism and legal socialism. The safety guarantee duty refers to the obligation to protect human body and property from damage in the reason of non-behavior. The people's Supreme Court promulgated the Interpretations of the application concerning of the Cognizance of Personal Damages in December 2003, which first prescribed the liability for violating of the safety guarantee duty, that is considered by many scholars a great legal progress. But how to exactly understand and apply the liability for the safety guarantee duty is discussed popularly. This article tries to make a profound analysis of the talked liability, through the combination of researching and actual cases.The connotation of the safety guarantee duty means person including natural person, legal person and other organization shall fully fulfill his obligations of protecting certain person and their property according to the law or the contract. He would be liable for the compensation because of his violating. The safety guarantee duty is only applicable to certain fields, just as employment,conveyance,service industry. Foreign theories also differed in this question. Some say the safety guarantee duty is a kind of duty of contract, some say it is legal duty. According to the writer's point of view, the safety guarantee duty as a legal duty in tort, is based not only on contract, so it is difficult to make a distinction between contract duty and infringement actually. According to the civil law, citizen, legal person shall take liability of negligent infringement of other'body or property.The second part is about the negligent presumption principal. Most scholars agree with the opinion. This judgment leads to different proof duty. During the writer's analysis, unless the defendant proved that he has occupied all the obligation, he shall be liable for the damage.The third part is about the needed components of the safety guarantee duty. It brings the question such as: how to determine the performance of the said duty, the causality of non-behavior and damage result. These issues linked to the reality closely, but also is the focus of the theory controversy. Since it is simple stipulated by the law, it gives the space to extent my suggestion.In the last part, we talk about the resuming type of liability. Many scholars say the supplement infringement liability should be applied. With the integration of all the related factor, a new proposal has been suggested in this paper.
Keywords/Search Tags:the safety guarantee duty, negligent inculpatory principle, unreal joint and several liability
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