The Supplementary Liability About Contravening The Obligations Of Security Guarantee

The related regulation of Article 6, Section 2 of Interpretation of the Supreme People’s Court of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury previsions of the security obligation to the victims in the infringement of a third person should bear the supplementary liability. The obligations the security obligations prevision are different from traditional liability for tort in that the essence of the obligations is supplementary instead of being direct. It takes effect in the form of compensation liability to the obligee only when the person directly responsible for the loss can not be recognized, has no capacity for compensation or the compensation isn’t enough. Article 37, Section 2 of “Tort Law of the People’s Republic of China” also affirms the regulation. The security obligations to the victims in the infringement of a third person provide effective solutions in case that the obligor fails to take the responsibility; they help balance the right of all parties. The present thesis analyzes the related theories of both continental law systems and Anglo-American law system, provides the essential explanation of the origin of the security obligations in China’s laws. Then it discusses in details and compares the affirmation of the obligor’s security obligations, the security limitation and the right of recourse before the thesis puts forward its proposition, its suggestion and assumption for the perfection of the regulations of the obligor’s security obligations.The thesis consists of four chapters in addition to its introduction and conclusion. The first chapter traces the history of security liability law both at home and abroad and explains the origin of the security liability theory in China(also the general security theory of the obligations liability from German laws). On this basis, it then analyzes the essence of the supplementary liability and points out that the supplementary liability of the security obligor is a tort liability in its new and form instead of the traditional liability form which deals with unreal joint-liability and joint liability.The second chapter provides the affirmation between the obligor’s nonfeasance and it consequent loss. The first part of this chapter deals with the theory of the casual relationship in the continental laws and Anglo-American law which lays a foundation for the judgment for obligor’s nonfeasance and the losses of the infringed. The second part summarized and discusses various opinions on the casual relationship both at home and abroad, and then raises the reason why the present thesis supports the judgment of the casual relationship between the nonfeasance and its consequences and that the casual relationship is justified. The obligor should take the obligations when he predicts the third person’s tort actions and fail to takes measures to stop them, which can be regarded as a nonfeasance leading to the fact of tort. Furthermore, it should be the must consideration in public policy.The third chapter discusses the security obligor’s liability limitation of the supplementary liability. It first analyzes various reason form domestic scholars for the annulment of supplementary obligations, refutes the opinion that supplementary obligations are not in conformity with the basic rules of civil rights and international conventions and proposes that the supplementary obligations provide effective solutions for cases in new forms of the traditional tort liability which are universally considered as being difficult to deal with. The chapter then analyzes the concrete definition of “related” of the expression “ related supplementary obligations” and assumes that the related obligations is relative to full obligations. The obligor’s security obligations is identical to the ones which results from obligator’s mistake which leads to this loss, and that it is the obligor rather than the third person who should take the obligations.The forth chapter probes into the question of right of recourse. It first relates the reasons why scholars support or oppose the acquisition of right of recourse and then the thesis makes a detailed analysis of the reasons and comes to the conclusion that it is not justified to deny the right of recourse and that the thesis believes that the obligor should be endowed with the right of recourse and makes supplements to the reasons of recourse.