Operators Security Obligations

The basic value that accompanies law is social security. The needs for security are the basic conditions for human being to group into society. For a long time, the case related with violation of security protection obligation is counted as a kind of infringement is not lacks enough attention and research, with the increasing of the cases that consumer is encroached on in place of business by third party, more and more of those cases are delivered to court of justice. Because there is no unified law to abide by, the results of judgment are different, which greatly affects the benefits of interested party and the unity of judicature. Till{( judicial interpretation on several problems over the application of law related with the trial of the case about indemnity to personal injury ))issued by the Supreme People's Court was carried out on May, 1st of 2004, The sixth clause firstly stipulated that the operator has the obligation to protect consumer from encroachment, providing judicial base for trial of such kind of cases. But the stipulation of judicial interpretation is merely the start of problem, there are more problems need to be fatherly studied, according to the above, this thesis tries to probe into one aspect of the obligation of security protection, which is the obligation of operator to protect the security of consumer under the situation encroachment from the third party occurred, with the help of comparative analysis and positive analysis, the author analyzes available researching fruits and elaborates her own understanding on the following aspects: the characteristics, historical evolution, legal principle, regulatory bases and nature of this obligation, as well as constructive conditions and accountability for violation of this obligation. I really hope this thesis could make some benefits to the perfection of our China's system of security protection.This thesis includes four parts without inclusion of introduction.The introduction uses examples to probe into the, research on the obligation of security protection, and limits this question to one aspect: the obligation of operator to protect the security of consumer under the situation encroachment from the third party occurred.The first chapter is the summarization of the obligation, introducing and discussing its concept and types. Then comes the thesis's emphasis: the obligation of operator to protect the security of consumer under the situation encroachment from the third party occurred; the historical evolution of and provisions in our China on this obligation. Based on the above, this chapter then analyzes the characteristics of that obligation.The second chapter is theoretical analysis. This part introduces legal basis, originating source, confirming content and nature research of that obligation, paying more attention to the nature of that obligation. After comparing with civil law country and Anglo-American law system's regulations on this obligation, the author inclines to make this obligation a legal obligation. That is not to let the encroachment responsibility to completely replace contracting responsibility, but to weaken the general application of contracting responsibility. In fact, there is possible concurrence for encroachment responsibility and contracting responsibility.The third is about constructive conditions of that obligation. The operator violates his security protection obligation, causing consumer injured by the third party in the place of business. There is causation relation between operator's performance and consumer's injury, and then comes the fault of operator. The emphasis in this chapter includes two aspect: the causation relation and the operator's fault.The forth is accountability in violation of that obligation. For the accountability part, this chapter makes a systematic exposition on it: firstly, on the base of introducing the controversies over operator's accountability in case of consumer is injured by a third party, it expounds the stipulation and understanding of our China's law related with that obligation; secondly, it discusses the reasonable base and applicable rules of indemnificatory accountability; the last, it analyzes the relationship indemnification liability and unreal joint liability.