Operating In Violation Of The Security Obligations Of Tort Liability

The so-called operators 's safeguards obligations, is the duty that operators commitment to the consumers or the potential consumers of their personal and property safety.The safeguards obligations of proprietor s is an objective requirement for the development of market economy and the progress of society, as well as an important means for achieving the substantial fairness of society. At the present stage of the development of our country, the theoretic research of the operators safeguards obligations is not deep enough, and the legislation of it is not perfect. Although Interpretations on Issues of Laws Applicable to Cases of Compensation for Personal Injury by the Supreme People's Court firstly and clearly states the concept of safeguard duty of proprietor, but its stipulation still has deficiency. This leads to the lack of sound theoretical principle and powerful guidance when undertaking the justice works and the difference between the judgments of the related cases. All of these seriously destroy the party's interests and make the preciseness of law doubtable. In view of this, the article uses the method of comparison analysis and demonstration analysis, by sorting out the research results, to investigate the general problems of the safeguard duty of proprietor such as its origin, its nature and its scope, and to make the preliminary and systematic discourse on liability fixation principle, constitutive requirement and liability undertaking of the legal liability that the proprietor have to undertake for violating this duty; in the hope of my little knowledge being able to perfect the safeguard duty of proprietor of our country.Apart from preface, the article is divided into four parts.There are more than 30,000 words in total.The first part is the origin of the operators' safeguards obligations. The article points out that the operators' safeguards obligations virtually originated from Verkehrspflicht. In term of the origin in form, the operators' safeguards obligations should be defined as legal duty by sorting out Continental Law, British-US Law and the related stipulation of our country from the point of law establishment, by using comparison analysis method and by taking account of the current situation of our lawmaking and justice works. The article also points out that the general provisions of violating act law should be established and all kinds of special law, administrative law and regulation should be added to meet the need of justice works.The second part is the theoretical analysis of operators' safeguards obligations. This part laid the foundation for the research of violating liability. Design of system needs the support of theory. The article firstly investigates the theoretical basis of the operators' safeguards obligations to point out that besides the general theory basis, the operators' safeguards obligations has its own theory basis, which mainly includes risk-return conformability principle, the requirement of social duty of operators, the realization of fair distribution and the legal concept of ensuring substantial equality.And then the article clarifies the principal part, object and content of the operators' safeguards obligations and so on to clear away the barrier on the way of cognition in the practice. As to principle part, apart from defining the duty undertaker as the proprietor consisting of owner, manager and contractor who are citizen, legal person and other social organization having actual control over premises; and points out that the other party to the obligation includes not only contractual consumers, but also potential consumers and others entering the premises for reasonable purposes. In point of object, the article points out that it includes the personal right and property right of the other party. With regard to the content, the article points out that it will continually change with the economic boom, technology development and social progress. The main trend is that the duty the proprietors undertake is heavier and heavier, while the safeguard system consumers enjoy is more and more perfect. But its content is relatively stable within a given historical stage of social development. At the present stage, the content mainly includes the duty of hazard prevention, of hazard spotting, of hazard control and elimination, of relief and protection as well as of evidence providing.The article according to dangerous source of dissimilarity of security guarantee obligation carries on a classification, one preventing from an own infringement for the executive of safe guarantee obligation, two protecting the guarantee obligation of the safety that the consumers defend to which they don't need the third people to violate for the executive.The latter type is the point of this article discussion, and this part main arguments it property.Finally the article points out the organic combination of the fully, fairly and the possibility is the principle of determining the reasonable limits of operators safeguards obligations ,which provides the basis for the realization of the right for judges discretion and increases the level of operation.The third part, the principle of tort liability and responsibility constitution of the operators who breaches security obligations .Through the principles of attribution and other comparison the article points out that the operators who has breached security obligations applicable to the case of fault principle of the presumption of liability. For the composition of tort liability, the article points out that the establishment of violations of the operators must be first determined. The breachment of security obligations of the infringement of operators is not as a form of the establishment of violations.To determine its composition, the operator should be analysed in terms of the following angles:first, the operators have access to their establishments for the people security obligations; Second, there should be damage to the existence of facts; third, there is fault which operators don't program the proper safeguards obligations; Fourth, and there should be the causal relationship between the the damage which operators has breached obligations and the facts. On this basis, there should also combine with the fault of victims to determine the comprehensive tort liability of the operators tho has breached security obligations.Part four, the accountability issues of infringement for the operators who has breached security obligations. This part is the logical extension of the third part, which is based on the reality of the cases often focusing on these contradictions, and the article will mainly discuss it. Firstly, the article discusses the outlined tort liability morphology of the breachment of security obligations, then the second part of the security operators of the classification of the corresponding obligations, the operators has breached prevent infringement of their safeguards obligations under the tort liability cases for the form of direct responsibility , violation of consumer protection against anti-third-free security obligations under the responsibility of shape "supplemental responsibility." Next,the article focuses on " supplemental responsibility", combing Interpretations on Issues of Laws Applicable to Cases of Compensation for Personal Injury by the Supreme People's Court and the relevant views of provisions of scholars in order, followed by reflection by light of these requirements and scholars point , then bring about that in the "add-in" question we should fully respect the victim's right to choose and not to limit its right. In the "restricted" supplemental questions the article raises in the foreign relations operator and the third per capita compensation to the victims should bear full responsibility; in the recovery of the issue, that is, the division of responsibilities within the article should not be taken across-the-board approach, although the operator should be given to a third party the right to unilaterally recovery, but the recovery should be in accordance with the operator to determine the extent of the fault. Finally liability insurance should be adopted reasonably dispersing the security of the operator responsibility.For the article conclusion ,on the basis of the analysis, the author brings about the proposed legislation expectations that emphasis should be given to the victim's personal and property rights protection ,meanwhile, operators of commitment to achieve the safety and security of the corresponding legal obligations and its responsibilities as a group in the business activities of the proceeds Equilibrium and risk control capabilities, thus promoting the healthy development of China's socialist market economy.