Operators. Tort Law Depending On Domain Security Obligations Study

In recent years, along with the development of our country's economy and society, the case of personal tort with new form emerge unceasingly. Among those, as one of the new cases, the operator and the organizer of social activity violates the safety control duty which causes infringement case, take Shanghai Milky Way guesthouse case as the start, following the case of one female tourist in the Beijing Old Summer Palace is killed, in Nanchang, a bank suffers six robber who wear a mask and holds a gun to rob, and a depositor is gunned down when he is handling the deposit service so on, the case of this type then emerge one after another incessantly. The need of reality summons legal rules and regulations.Although on December 26,2003, the Supreme People's Court appeared " Explanation about Certain Questions of Personal Damage compensation's Applicable legislation " (hereafter refers to as "Explanation") has made the related stipulation for the first time to the operator safety control duty, which not only filled the crack of our country infringe law, but also unified the law to be suitable. However, there are obvious flaw in the "Explanation". On December 26,2009, "the Right of infringement Responsibility Law of People's Republic of China" (hereafter refers to as "Right infringement Responsibility Law") passes, making the stipulation of operator's responsibility in 37 to violate the safety control duty. Compared with "Explanation", "Right infringement Responsibility Law" makes a great progress, while there is still some weakness.Only through thorough research of legal theory unceasingly, can we promotes the consummation which legislates related day-by-day, make this system in judicial practice being suitable, balance victim and the operator's benefit, supervise the operator to fulfill the safety control duty, and finally realizes harmonious society.With the aid of the theoretical analysis and the empirical analysis, this article make an analysis to the safety control duty which under the law sight of infringement, discover the dispute, prove the truth. Besides the foreword and the conclusion, the textual material is divided into five chapters to launch the elaboration:The first chapter makes a definition of operator's safety control duty. Operator's safety control duty, is refers to the operator has the duty to protect all the people's person and the property who serve in the place to exempt from the violation. Through the inquiring of law foundation, we can grasp the criterion of operator's safety control duty profoundly, which is helpful to analysis the operator's safety control duty from the main body scope of voluntary, the scope of protection object, the spatial scope, the time horizon. The second chapter mainly makes an analysis of the necessary to make the operator safety control duty into infringement law. Because there are a lot of difference between the contract law and infringement law, for example, the voluntary nature is different, the scope of protection rights' and interests' is different, the difference of compensation scope, which make the operator safety control duty integrating under the right infringement law sight become more important. Integrates the operator safety control duty into the infringement law is advantageous to distribute living resources rationally, adapt the social value vicissitude, which manifested peoples'higher social objective pursue.The third chapter make a discussion of the responsibility principle of managers when violate the safety control duty. Regarding violating the safety control duty the operator whether the non-mistake responsibility principle is suitable, as for this question, the educational world opinion is quite consistent, holds the negative manner. However, who undertake the responsibility of mistake onus probed, the scholars'opinion is different. Through the analysis of legal theory, we can discover that the principle of the mistake to estimate is more scientific and rational.The fourth chapter makes an inspection of the constitution of the safety control duty. As for the constitution of infringement responsibility, there are "three important documents saying" and "four important documents saying", the author insisted "four important documents saying" the rationality, and thought that the operator violated the safety control duty also need to satisfy four important documents, that is operator's illegal activity, the harm fact, the causal relation directly between the illegal activity and the harm fact, and finally the operator have the mistake. While insisted that "four important documents saying" does not repel using objective test to recognize the mistake in the concrete infringement case. We cannot neglect that the operator violate the safety control duty are one kind which do not take the right infringement, the negative right infringement, this characteristic causes standard identity in the mistake and in the behavior illegal determination, namely whether arriving at the safety control duty is the basis. Therefore, this article will elaborate operator behavior illegal and the mistake together, while as for the harm fact and the causal relation rule, there are respective standards.The fifth chapter make an elaboration of infringement responsibility when the operator violates the safety control duty will undertake. This chapter mainly discusses the supplement infringement responsibility which the operator undertakes whether reasonable as well as the duty may relief in what situation. Due to the operator do not fill his safety obligation which lead to the third protegee suffered damage. Allow the operator to take additional tort liability not only violates the basic principles of tort damages, but also violate the general theory of fault, and also is very unfavorable to the victim. Under such circumstances, the breach of the security duty and implementation of the operators constitute a not real relationship, which should bear the not true joint responsibility. Breach of the security duty when constitute infringement, as for the victim was at fault, the victim's consent, defense and emergency hedge also apply.