Analysis On The Tort Liability Of Violating The Security Obligation

Security is the highest principle of social communication, in order to protect people’s personal safety and property safety, the major countries of the two legal systems have created the “communication security obligation” and “duty of care” theory through case to solve the problem of nonfeasance tort, and they have accumulated over a hundred years of experience in this field. In recent years, many nonfeasance tort cases have occurred in accommodation, catering, entertainment and other public places and in mass activities in China, in order to provide the referee basis for solving these cases, China made reference to the practice of German and established the security obligation in Tort Law. But, only in recent years has China began to pay attention to the security obligation theory, so there are many controversial issues in the field of the tort liability of violating the security obligation, such as the doctrine of liability fixation, the causes of security obligation, the rationality of supplementary liability and the right of recourse and so on, so scholars should discuss these controversial issues in depth.In addition to the introduction and conclusion, this thesis is divided into four parts:The first part first introduces the nonfeasance tort cases that occurred in the social life, then introduces the main methods which used to solve such cases by other countries, they redress victims who suffer injury in nonfeasance cases with the methods of Contract Law and Tort Law. Specifically, these methods mainly include contracting fault liability, active infringement of creditor’s rights and the protective duty of Tort Law. But when there is no contractual relationship or contracting relationship between the parties, the methods in Contract Law will not work, and What’s more, Contract Law can not compensate for moral damage, so other countries increasingly have their eye on the methods of Tort Law and constantly expanding the protective duty of Tort Law. China also established the security obligation in Tort Law to solve nonfeasance cases.The second part mainly discusses the doctrine of liability fixation of violating the security obligation. From the perspective of comparative law, the Civil Law countries tend to adopt the principle of presumptive fault, and the Common Law countries mainly adopt the rule of “Res ipsa loquitur”. Chinese scholars believe that strict liability can not be used, but some of them choose the principle of presumptive fault, whereas the others opt for the principle of fault liability. In this part, the author thinks that China should adopt the principle of fault liability, because using the principle of presumptive fault is too severe to the obligor, it will improperly increase his cost burden. In addition, Chinese liability insurance and social security is not as developed as the West, so it is difficult for the obligor to transfer the risk to the social aspect. Moreover, the Tort Law does not adopt the principle of presumptive fault.The third part is focus on the constitutive requirements of violating the security obligation. In order to correctly judge the fault of the obligor, the first thing to do is to judge whether he bears the security obligation. There are only two causes of security obligation in Tort Law, it can not cope with the needs of practice. So the author believes that previous risk behavior and controlling the private places can also generate the security obligation. And in judicial practice, the judge should not absolutely determine that the plaintiff does not undertake the security obligation to illegal entrants. Additionally, it is inadvisable for China to include the security obligation in general clause of fault tort. Furthermore, it is crucial that the “reasonable limit” problem should be taken into account in the process of judging fault. In terms of causal relationship, adopting correspondence theory of causal relationship is appropriate, but it may be unduly expand responsibility, so it should be corrected by means of foreseeability doctrine, superseding cause doctrine and other theories.The fourth part mainly discusses the undertaking of the tort liability of violating the security obligation in the case of the third person involved. In this part, the author thinks that using the corresponding supplementary liability universally is unreasonable, the applicable occasions of this liability form should be limited in the situation that the third person is deliberate and the obligor is neglectful. If the obligor violates the security obligation deliberately, he should undertake joint liability. And if the obligor and the third person are both neglectful, the liability form should be the liability by shares. Depending on the specific circumstances of the case, the liability form may be different, it can achieve social justice better. As for the right of recourse, although it has not been clearly defined in Tort Law, the author thinks that China should acknowledge the right of recourse of the obligor who has undertaken the corresponding supplementary liability.