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The Supplementary Liability About Contravening The Obligations Of Security Guarantee

Posted on:2013-12-24Degree:MasterType:Thesis
Country:ChinaCandidate:W B ZhuFull Text:PDF
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As one of the manners of undertaking tortious liability,supplementary liability is mainly focused on how to attribute liabilityto the guarantor responsible for security if a third party commits tortagainst victim within the scope of guarantee. In Article6of theInterpretation of Compensation for Personal Injury (hereinafter calledas the "Interpretation") promulgated in2003, our nation for the firsttime established thorough and complete provisions on supplementarycompensation liability. Through several years’ of judicial practice,Article37and40of the Tort Liability Law taking effect in July2010modified and adjusted supplementary liability for contravening theobligations of security guarantee or duties of management. On the groundsof the discrepancy with respect to supplementary compensation liabilitybetween the Interpretation and the Tort Liability Law, as well as thedifferent understanding thereof between judicial theory and judicialpractice, it has become a Gordian knot in the field of judicial practiceto determine and apply the system of supplementary compensation liabilityin consequence of violating the obligations of security guarantee.Through analyzing and studying the most controversial problems in the academic circle, this thesis provides some reference and suggestions forthe purpose of correctly understanding and applying the system ofsupplementary compensation liability.This thesis falls into three parts. The first part clarifies thedefinition and characteristics of the supplementary liability throughcomparing the history of our nation’s legislation and relevant foreignsystems, and defining the types of similar legislations.The second part is the focus of this thesis, and dilates upon thestandard of determining contravention of the obligations of securityguarantee, determination of the causal relationship concerningsupplementary liability, manners of undertaking supplementary liability,and existence of right of recourse. In the case of security guarantor hasthe obligation and ability to foresee, but s/he failed to fulfill his/herobligation, or s/he hasn’t taken action to prevent the damage, s/he couldbe determined to be contravening the obligations of security guarantee.The causal relationship between security guarantor’s omission and damageis reflected as "no omission, no damage". In the case of omission tort,security guarantor’s omission accidentally combines with the thirdparty’s tort eventually led to the damage. The responsible person shallassume "corresponding" supplementary compensation liability to theextent of his/her fault, meaning within the range of his/her ability toprevent or stop the damage. The person undertaking supplementarycompensation liability has the right of recourse against directresponsible person, because his/her liability is complementary, the finalundertaker should be the direct responsible person.The third part compares and analyzes the differences of theconnotations, features, applicable conditions and judicial value betweensupplementary compensation liability, shared liability, joint liability,and unreal joint and several liability, thus to show the unique judicial value of supplementary compensation liability, and to provide somereference for applying the system of supplementary compensationliability.
Keywords/Search Tags:obligations of security guarantee, tort, unrealjoint and several liability, supplementary liability, rightof recourse
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