Research Of Security Obligor’s Supplementary Obligations

The British jurist Hobbes once said, "The safety of the people is the supreme law." The supplementary liability of security obligor was first stipulated in the Judicial Interpretation on the Law-applicability of compensation for personal injuries (hereinafter referred to as the judicial interpretation on the compensation for personal injuries) issued by the Supreme Court in 2003. Tort Liability Law enforced from July 1st,2010 summarized the past judicial practice before, and it unified the security obligation system in respect of tort law for the first time and provided an important legal ground to guarantee the obligor’s legal interest. Forms of security obligors’ taking the liability for tort are divided into direct liability and supplementary liability. Compared with direct liability, supplementary liability is more difficult to grasp, and academia and judiciary are still at odds on its identification and the range of application. Therefore, further discussion and analysis need to be carried out. At present, two theories exist in our country including the affirmation and the denial theory of whether security obligor are applicable to the supplementary liability. In the law-applicability process of security obligors’ supplementary liability, there are five problems need to be paid attention to:First, the judgment standards for the violation of security obligation is not clear. In judicial practice, mandatory standard, rational man standard, industrial standard or practice and predictability are necessary to judge whether the doer have fulfilled the security obligation. Second, it has not made stipulations about the rules of exercising the beneficium excussionis. The precondition and time of exercising the beneficium excussionis, as well as the collateral obligation are all the problems that need to be solved during the application process of supplementary liability. Third, whether the security obligors have the right of recourse are in dispute in legislation, and only when the right of recourse is conferred on the security obligors could the interest conflict between the primary and secondary responsible persons be solved. Fourth, it is hard to judge the understanding of the corresponding supplementary liability. The corresponding supplementary liability is the restriction of supplementary liability. The extent of liability for security obligators should not exceed what they undertake. What they undertake is not necessarily the all that directly responsible person could not pay off. In some cases, it is hard to analyze the causative potency, so the corresponding supplementary liability is in proportion to the degree of mistakes by security obligors. The fifth is the rationality of the third person’s assuming compensation liability for all damages to the external. This should start with the third person’s behavioral nature and it should not be analyzed from the perspective of the security obligor’s behavioral nature. If the third person does damage to others on purpose, he or she should take the full consequences of damage. His or her liability is not relieved because of others’ mistakes. At present, there are several problems of security obligators’ applicability to the supplementary liabi. In comparative law, the rank or order theory on civil servants’ supplementary liability and most people’s associate liability in German’s tort law, the reform of unreal associate liability in Switzerland Code of Debt, America’s theory of hierarchy and duty of prevention of the third person’s willful infringement, these legal systems similar to the form of supplementary liability provide important enlightenment for the perfection of supplementary obligation in our country. Our country’s tort law should perfect the security obligor’s supplementary liability system. Improvement suggestions on security obligor’s supplementary liability should be proposed from the perspective of refinement of legislation and judicial application.