Font Size: a A A

Study Of Security Obligations

Posted on:2013-01-04Degree:MasterType:Thesis
Country:ChinaCandidate:F LiuFull Text:PDF
GTID:2246330371489531Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
In the early Roman law, there are some prescripts about the actor toed the mark, because he actedagainst the obligations of ensure public safety and responsibility. Henceforth, other countries set up thetheory of security obligations successively through the judicial precedent. Up to the present, manycountries formed the self-contained system info of security obligations which have different appellationsand experience dissimilar evolution. For example, the Germanic safely traffic onus, the Japonica safelyonus theoretic, Anglo-American legal system’s duty of care, etc.In Germany, security obligations went by the name of safely traffic onus (since this theory is the originof security obligation in our country), it sets up by juridical repudiation and judicial practice in the earlytwentieth century, and it is the outcome to the justicer creates the law. Germanic law safeguards the obligesfrom the contractual relationship’s juristically angle. Initially, Germanic theory just accept that when thefirst act of obligation has being, people should compensate the harm which is worked by nonfeasance.Henceforth, the court broadens this scope of responsibility gradually. This is means that, because ofadvance dangerous act, the actor have one obligation of avert the danger happen. If the actor should not dothis, and make the bilge’s body or possession has damaged, they are ought to take on the compensatoryliability.In Japan, the security obligations named safely onus theoretic, is also accepted by repudiation. But,there have a dispute about the kind of theoretic to this day at all times. Some academician consider that thesafely onus theoretic come from principle of good faith, it is a sort of collateral obligation. Any one thinksthat it is a kind of essence of obligation in contract of labors. Another one deem that it is a sort ofcontractual obligations, if some one infect this obligation, it will be give birth to contractual liability. Theseviewpoints are more influential theory about safely onus theoretics in the theory circle, and the secondviewpoint is the main stream view in theory of labor law.French security obligations are as well as established through judicial precedent. This theory involvedin the infringement act theory, and also the contract related theory, it is a way of expression about securityobligations. In the early, safety onus is brought forward for protect the victim in accident on duty in France. Henceforth, its sphere of application is enlarged ceaselessly. It is the same with the contract law’s field andtort law’s field, and come into being self-contained system info.In Anglo-American legal system, security obligations represent to the duty of care. In United States,jurisprudential circle think that the duty of care is a necessary condition to the tort of negligence, theperformer shall bear the responsibility is not determinate between the fault and the victim’s damages have adirect causal relationship, but from such a danger can reasonable to foresee, or not. In these states, thecommon rule to the duty of care is that, the actor is not the insurer for the oblique’s personal safety, but anactor must be live up to reasonable notice, to avoid the oblique’s life and property get harm. Otherwise, theactor ought to bear the responsibility for compensation; if the compensation is caused by the actor do hisduty with no reasonable care. At the same time, the actor can be exempted when the danger is incapable ofreasonable prefigure.Relative to the two legal systems, it makes any research on security obligations; our study on thetheory of security obligations relatively late start, the theory of development is static, except Taiwan. Thetransaction security obligations come forth for the first time at the judiciary adjudicates in1978.Subsequently, the interior of China has begun to do any research on security obligations, and the securityobligations’ concept has been put forward officially by the supreme people’s court hearing a case ofpersonal injury compensation of the question of interpretation applicable law of obligations. The intentionof put forward this theory is seasoned with the development of society and economy, promote equity andsocial justice, and the social harmony and development has be actively promoting.With the development of society, the deficiency of legislative prescript is discovered gradually. Thesetake any obsession to judicial proactive. Until the year2010, China makes more clear prescript to securityobligations in the law of tort liability which based on sum up experience and judicial practice. Althoughthese prescripts of the judicial interpretation have made considerable progress, but no law is perfect, allnew problems are emerging, this provision could not resolve all questions validly. For the sake of thistheory better applied, we must make more deep-rooted analysis on the existing theories of securityobligations theory, and promote it for the theory of security obligations better development.This article through the four parts to the topic for discussion.The first part mainly discusses the safetyguarantee obligation of general theory, based on the theory of the obligation of security development to explore the track, looking for the obligation of safety guarantee of basic connotation, clear obligation ofsafety guarantee of legal basis and scope of application.The second part is mainly through the continentallaw system and Anglo-American law system so far on the obligation of security legislation modeundertakes comparative, for research on the safety guarantee obligation is established to providereference.The third part mainly is a violation of the tort liability of the security obligation, this partdiscusses the present stage both at home and abroad on the safety guarantee obligations of the nature, types,principle of imputation and elements of the four problem, which is the main analysis of the ancient Chineseliterature search of this kind of problem solution.The fourth part introduced our country judicial practiceshould pay attention to the problem, through the description of China’s safety guarantee obligations of thelegislative status quo, analysis of obligation of safety guarantee in China’s progress and existingdeficiencies, and the right context judgement, in violation of the security obligation forms, thirdintervention when the responsibility sharing of three questions to carry on the analysis, the response ofobligation of safety guarantee reasonable limit.
Keywords/Search Tags:Security obligations, Attention duty, Tort liability, Contract liability, Added responsibility
PDF Full Text Request
Related items