Liability For Tort Of Violation Of The Security Obligation

The regulation of omission torts holds an important place in torts laws of most countries nowadays. The core of omission torts lies in the breach of duty to act. The duty to act comes not only from statutes and contracts, but also from the duty of care for the safety of others'body and property. The term'the safeguard duty'first appeared in Article 6 of'The Judicial Interpretation on the appliance of law in body-damage cases'. This provision basically stipulates the torts liability resulting from business operators'breach of safeguard duty, which was considered a major progress achieved by legislation body in the field of omission torts. Besides compliments, the critics from scholars and lawyers also attracted people's attention. Six years later,'The Law of Torts Liability of People's Republic of China'was publicized, and in its Article 37, the duty of safety guard was updated. However, scholars and lawyers still believe that there is quite a lot of room for further improvement. This thesis is divided into four parts, aiming at making a thorough analysis of basic problems in the field of torts liability originating from the breach of safeguard duty, making a proper evaluation of the relative statutes and contributing some proposals for further modification of the relative statutes.The first part mainly introduces the origin of the modern version of the safeguard duty in a comparative approach. The safeguard duty dates back to the ancient times when Roman Law prospered. But the modern version of the safeguard duty is well believed to have originated in Germany in the 14th century. In Germany, the safeguard duty is called'the common duty of safety care'. In the context of the Anglo-US legal system, the safeguard duty corresponds to the term'duty of care'. The term'the safeguard duty'appeared in a judicial interpretation for the very first time in Chinese legal system. And'The Law of Torts Liability of People's Republic of China', which was publicized in late 2009 made some modification of the previous provision.The second part mainly discusses the criteria of torts liability from the breach of the safeguard duty. The judicial interpretation chose the fault principle, whereas the law of torts liability opted for the principle of presumptive fault. This change is perceived as a significant improvement. It's believed that the rule of presumption of fault best fits into the current social situation of China in this area. However, times never stop changing. Given the knowledge that the torts from the breach of the safeguard duty often cause serious damages to people's body and property, this thesis proposes we should think in a loss-spreading way and introduce the principle of strict liability into this area to replace the principle of presumptive fault, with the help of liability insurance.The third part is mainly about the constitutive elements of the torts liability from the breach of the safeguard duty. On the constitutive elements of the negligent torts liability, there exist two parallel theories, that is, three-element theory and four-element theory. In my opinion,'the objective fault theory'and'the act-illegality theory'are so convincing that the three-element theory makes more sense than the four-element theory. Therefore, this thesis puts the analysis of the constitutive elements of the torts liability from breach of the safeguard duty on the base of the three-element theory. Among the three elements, breach of the safeguard duty and the casual relationship between breach of duty and damages are highly important.The fourth part mainly focuses on the undertaking of the torts liability from breach of safeguard duty. In my view, the supplement liability placed on the ones who bear safeguard duty by the laws goes against basic legal principles and social fairness and the thesis provides a solution.