On The Complementary Liability System Of Security Obligors

“Security of people is the supreme law”,security is the basic guarantee of people’s social communication. With the social development of China and an increasing number of complicated social activities, security incidents appear more and more frequently in public area like restaurants, hotels, entertainments and in mass activities. Thus, whether managers or organizers have liabilities of damage for victims who have physical injuries or property losses within the scope of management has become an important research object in the tort liability law, and it has become increasingly necessary that the security obligation system should be established.The complementary liability system came into being along with the establishment of China security obligation system. In two kinds of tort cases caused by managers’ omission in public areas, one was that the third party intervened and infringed others’ personal or property while the security obligor do not fulfilled the duty care. However, in judicial practice, current laws could not be applied to conformation of liabilities for tort the security obligor, in order to solve this problem, through concluding experience judicial practice, Chinese scholars came up with the proposal of the complementary liability system, which was finally adopted by legislation of China. The sixth article in Explanations on Compensation for Personal Injuries issued in 2003 defined the concept of the complementary liability system relatively completely for the first time. Later, the complementary liability system was applied into confirmation of liabilities for tort of security obligors in the third party tort cases. Tort Liability Law issued in 2009 made partial amendments and adjustments on the basis of the previous one and established the complementary liability system in legislation form in the 37 th article for the first time. However, different stipulations on the complementary liability system in these two documents had led to scholars’ discussions about contents of the system and arguments about understandings. These divergences were also reflected in the application of the law article, similar cases might have different trial results due to different understandings of judges. Since the complementary liability system are of great importance to practical interests of all parties in omission tort cases, standardizing the law-making stipulations of the complementary liability system is of great significance.On the basis of analyses on domestic scholars’ several controversies, the author proposed own ideas on perfection of the complementary liability system through delving into problems and disadvantages showed in the application of the complementary liability system in judicial practice. With comparatively simple structure, this thesis was mainly divided in to three chapters besides introduction and conclusion.In chapter one, the author summarized and introduced the complementary liability system in security obligations including specific articles on the complementary liability system in legislation of China, difference in stipulation of the complementary liability system in Explanations on Compensation for Personal Injuries and Tort Liability Law, understandings of articles and characteristics of the complementary liability system like sequence and difference supplement. Later, the author stated that the complementary liability system were valuable in judicial practice application though some Chinese scholars objected to the establishment of the complementary liability system. Its existence must be reasonable because it conformed to the social development of China and met demands of judicial practice. At the end of this chapter, the author listed controversies of academia related to the complementary liability system and problems showed in application and stated that some perfecting suggestions would be proposed through delving into the complementary liability system. And furthermore, key issues discussed in the following chapter were introduced.Chapter two was the key part of this thesis. The complementary liability system was a new liability system created by scholars in China. Its nature had always been the controversy of the academia. As to its structure, some scholars believed that the complementary liability system in China was created through referring to the unreal joint liability system, these two systems had similarities, thus, the complementary liability system should be subordinated to the unreal joint liability system. Meanwhile, some scholars pointed out these two systems still had obvious differences, thus, regarding the complementary liability system as a new joint tort liability system was more reasonable. The law article in China stipulated that security obligors who did not fulfill duties should shoulder corresponding complementary compensation liabilities, thus, how to understand the article and how to confirm the extent of compensation of security obligors should be illuminated clearly. Finally, the author stated the difficult problem of this thesis which was also the hot issue related to the study of the complementary liability in academia, it was the right of recourse in the complementary liability system. Due to different stipulations of the right of recourse in judicial explanations and tort laws, application of the right in practical judicial work was in disorder. In some cases, security obligors had the right of recourse, but in other cases, they did not have the right. From perspectives of security obligors’ omissions and the subjective state of third party’s actions, the author analyzed whether the right of recourse should be established in the complementary liability system.In the last chapter, based on previous research, the author pointed out disadvantages in the complementary liability system including whether the complementary liability system could be applied into liability confirmation of security obligors in all security areas, whether the complementary liability system was the best applicable plan in some omission tort cases, especially in judicial practice cases that judges judged that security obligors bear joint liabilities or proportional liabilities and the necessity of setting up the right of recourse in the Tort Liability Law. Aiming at these problems above, the author proposed several legislative suggestions through the research.