Analysis Of The Security Obligation Based On Rechtsdogmatik

As one of the most important civil law countries, Germany always walks in theforefront of the times. A lot of its legislation, such as the security obligation,has a farinfluence throughout the world,and it has been widely referenced or adopted by othercountries. From the "dead case" in1902to the "road salt case" in1903to the"veterinary case" in1921, the security obligation was first put forward inGermany,which caught the jurist and public’s attention gradually.Through the theoretical study and practical development, communication securityobligation has been the mature theory. It has different names in different coutries, andit is called the security obligation in our country. In2003,the security obligation wasfirst put forward in the trial of cases on compensation for personal injury by thesupreme people’s court, wich established the theory of security obligation, andprescribed the security obligor, his obligations and the range of obligations. As theincreasing of mass activities and hotels, shopping malls, banks, railway stations,entertainments in public places,consumers and participants’ personal and propertysafety has aroused people’s concern gradually. At the same time, the infringementcases by the third person happened constantly in the public places and mass activities.As a result,in2009,the tort law clearly prescribed the security obligation of managers of the public places and organizers of mass activities,and their supplementaryliabilities when the third person infringed in article37.Establishing theory of the security obligation and knowing the range of obligationand responsibility,is not only beneficial to safeguard the legitimate rights and interestsof the protectors, but also advantageous to realize the fairness and justice of the law.This thesis is in article37of tort law as the center,it explains the security obligationbased on rechtsdogmatik expressly. It uses different kinds of research methods, suchas comparative method, semantic analysis method, and value analysis method and soon. In order to make a comprehensive, objective and scientific research, this thesislists not only oreign legislative cases, but also the domestic scholars’ points. What’smore, both the rule of law and practical experience are included.The first part introduces a typical case of the security obligation, robbery ofbranch of China construction bank in Guandu, which leads to the research topic andresearch direction of this article.The second part is mainly about the history of the security obligation, it consistsof civil law, common law and our country’s provisions, which includs its origin,concept, and provisions of the existing laws and regulations. It does a basicunderstanding of the security obligation, which lays the foundation for discussion indetail later.The third part is the main body of the article. In article37of tort law as the center,it analysizes the security obligation based on rechtsdogmatik. It lists four constitutiverequirements of the security obligation in detail, including infringement acts andfaults of the security obligors, causing damage, and the causal relationship betweeninfringement acts and damage. Through analysizing four constitutive requirements ofthe security obligation, the security obligors, source,scope and types of obligation aremade clear there.The fourth part is one of the focus of this article. It is mainly about the secondparagraph of article37of the tort law, which prescribes the security obligors’obligation when the third person infringes. The key part is seperated into two bodies.One is about supplementary liability’s contents, major characteristics, the right of recourse of the security obligor after he pays the debts. The other expressly explainsjoint liability, not really joint liability, and press a responsibility, which are related tosupplementary liability.Part5is last and conclusive part of the article. It states the purpose and mainpoints of this article again. Although many ideas and suggestions about the securityobligation are supposed by scholars, the rechtsdogmatik is based on differentprovisions of the existing laws. As a result, this paper should do a comprehensive andobjective research on the security obligation according to article37of the tort law.