Study On Safeguard Obligation

The development of social industrialization and progress of science andtechnology bring wealth and civilization to the human. At the same time, they alsobrought a variety of potential danger, which lead the safeguard obligation particularlyimportant now. The more frequently and complexly exchanges between people, themore constantly update and develop in the scope of the safeguard obligation. InContrast to the Article6of the interpretation of personal injury’s compensation by theSupreme Court, Article37of Tort Law has significant progress in both the scope ofthe subject and the way of responsibility. But we should also see that since the tortlaw was enacted four years ago, the safeguard obligation has remained controversialin theory. There are still problems in judicial practice which should be solved,especially the scope of the subject of safeguard obligation, scope of the other party,principle of violating obligation and the supplementary responsibility when there is athird person.First, this paper will analyze two typical real cases and list some questions aboutsafeguard obligation. Second, based on the analysis of the theory of safeguardobligation, the safeguard obligation should be considered as statutory obligation inprinciple and has the nature of contract in some situations. The safeguard obligation’smain sources are law, contract and prior behavior. Third, on the basis of the empiricalanalysis and comparative analysis of the typical cases and reference of foreign legislation and judicial practice, this paper will analyze requirements and legalconsequences of violating safeguard obligation. In terms of the scope of the obligor ofsafeguard obligation, it should be expanded. The risk control ability and principles ofreasonable foresight can be the defined standard of obligor. Also, the manager ofprivate places should be included in the typical safeguard obligation of subject. Interms of the other party of safeguard obligation,"management and control" principlecan be used to determine the scope of "others" in Article37of Tort Law. In terms ofthe defined standard of violating obligation, based on the law, business standards andconvention, it can be adjusted according to the other party in cases and profit situationand size of obligator. In terms of legal consequences of violating obligation, it canappropriately refer foreign legislation and judicial precedent, and reconstruct ofsupplementary liability. In the other words, Article37of Tort Law should beinterpreted to supplementary responsibility in the broadest sense, and then it can bedivided into direct responsibility and special supplementary responsibility.