Research On Tort Liability Of Violating The Safety-guard Duty

Safety-guard duty originated from safety-care duty in traffic area in German Law. After years of theoretical research and judicial practice, it has evolved into safety-care duty in common area. No matter the common law system or civil law system,the nations from all kinds of area have put the safety-guard duty into their country,and named it differently due to specific circumstances. China has named it safety-guard duty. Safety-guard duty is active duty in tort liability law, i.e., in specific occasion, safety-guard obligor should protect other people’s personal security and property safety in active ways. In 2003, The Supreme People’s Court issued "the Interpretation on Issues of Laws application to Cases of Compensation for Personal Injury". It is the first time that safety-guard duty is made plain in China’s normalizative document of law. then the Tort Liability Law issued in 2009, stipulated the safety-guard duty rules in legislative form, and made amendment and perfection to the safety-guard duty rules. In Tort Liability Law, the responsibility in the violation of safety-guard duty is divided into two classes. One is the direct responsibility for passive ommision of the safety-guard obligor. The other is the supplementary responsibility of the safety-guard obligor in case of the presence of tort by the third party.Although the Tort Liability Law has stipulated the tort liability of violating the safety-guard duty,some problems,just like the imputative principles of tort liability of violating the safety-guard duty or direct tort from the third party, are not stipulated perfectly. The rationality of construction, range of application, sequence of compensation and the presence or absence of the right of recourse in the supplementary responsibility rule are all in debate in academic community. In addition, there is no operation and unified standard in judicial practice, which caused a phenomenon of different sentences to the same cases. Consequently, exceptional guiding significance lies in the clarification of the responsibility form of safety-guard obligor.It is good for the judicial practice as well.In view of the above facts, this thesis proceeds with the basic theory of safety-guard duty. The origin and development of the safety-guard duty theory are elaborated. The duty subject range and right subject range of the safety-guard duty are defined. The imputation rule and its key component of the tort responsibility in violation of safety-guard duty are analyzed. And the supplementary liability in violation of safety-guard duty is studied and analyzed in way of dogmatics, from the view of science of construction of law. The rationality of the supplementary responsibility is revealed, and the rule of application of the supplementary is clarified, looking forward to its rational service in judicial practice.