| When the harming of persons and property caused by a third person happens inthe security obligator’s span of control, the confirmation of the obligator’sresponsibility is a hard question to current academic and practical fields. Although,some judicial interpretations and articles of law are available, the differences ofrepresentations and the academic argument on the supplementary liability still leadthe judges’ viewpoints to vary greatly so that different judicial results are obtained insimilar cases. Because all parties’ claims are involved, the appropriate application oflegal norms means a lot to social harmony and stability. The clearance of the range ofArticle37(2) in Tort Liability Law can provide a clear guidance for the confirmationof obligator’s responsibility in such cases.Compared with Article6(2) in Interpretation of the Supreme People’s Court ofSome Issues concerning the Application of Law for the Trial of Cases onCompensation for Personal Injury,the article37(2) only has slight adjustments inparticular terms. It widens the range of security obligator from “business activity” to“public places”. As for the specific range, some relevance regulations approved byState Council can be referred. As the society advances, the range still has space towiden. The determination of principle of how to confirm the security obligators’responsibility is the basis and also the logical premise of the discussion of how thesecurity obligator take responsibility. I think, the violation of security obligation shallapply to the Doctrine of presumption. As long as the infringed damage happens in thesecurity obligator’s span of control, the fault of the security obligator can bepresumed, unless he/she can prove the security obligation in reasonable limitation hasalready exercised.The tort liability generally consists of act of tort, damage, causation and fault.The constituent elements of security obligator’s tort liability is also included. The actof tort means the violation of the security obligation; damage mainly consists ofpersonal injury and property damage; the causation shall use the correspondence of causal relationship theory. As the development of negligence theory, fault actuallytransforms into a violation of duty of care. The security obligator’s fault appears theviolation of security obligation, and this obligation is based on the law or a contract.The judgment of the degree of fault shall refer to the legal standard, trade standardand the act standard of “good administrators”. From the aspect of act, Article37(2)only adjusts the occurrence of “the act of a third person+security obligator’somission”, and it is similar to the occurrence Article12adjusts. When judging whicharticle to apply to, the particular fact of security obligator’s omission shall be takeninto consideration. From the aspect of fault, Article37(2) only adjusts the occurrenceof “a third person’s intent+negligence of security obligator”.In the context of Article37(2), security obligator shall undertake the supplementliability and the application of joint liability, proportionate liability and unreal jointliability are all inappropriate. As the right of recourse of the infringed and the securityobligator’s interest are both taken into consideration,“corresponding supplementliability” is reasonable. If the infringed indicts the third person and the securityobligator at the same time, the security obligator’s substantial defense right shall beconsidered and the sequence of the third person and the security obligator shall bereflected in the enforcement process. The procedural form here is similar to the one ingeneral co-litigation. As for the security obligator’s responsibility, as the supplementliability, shall be taken in the range the third person fails to compensate. As theresponsible shares shall be determined by his/her degree of fault. After undertakingthe supplement liability corresponding to his/her fault, the security obligator has noright to pursue recovery from the third person. |
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