On Corresponding Supplementary Liabilities Of Security Obligators When Involved A Third Person

The Tort Law of China provides security obligations. Obligor of security should bear the liability. In the case when the direct infringement of a third person combine the negligence of omission indirect infringement and cause the same damage of same person, it meets the definition of “same damage caused by different behavior”in the Article 12 of the Tort Law.According to Article 37, the security obligor should bear “corresponding supplementary liability” when a direct infringement of a third person involves,which means only when the obligee fails to get compensation from the direct infringer can he/she demand the compensation from the security obligor.This paper analyzes the content of the following aspects: First, the concept of security obligations; Second, the basic rules of supplementary liability including its structure and legal basis;the meaning of the corresponding supplementary liability, etc; Second, under the combination of security obligations and the characteristic of indirect infringement,how to apply the supplementary liability; third, from the perspective of the impact of intentional or negligent of the third party infringement,which kind of obligation forms shall be undertaken under this circumstance.The conclusions are as follow:When several people cause same damage,they should bear joint and several liability,pure several liability or supplementary liability under the tort law system.Supplementary liability and joint liability are only slightly different in the distribution of procedural costs.But several responsibility form is quite different form them, since the direct infringer should take full responsibility.In tort law system, paragraph 2 of Article 37 and Article 12 apply to the same circumstance.The factors define the application of the two articles are the intention or negligence of the third person. Paragraph 2 of Article 37 can be seen as a special provision in the field of security obligations when the willful infringement of the third party cause the damage in the combination of the negligence of the security obligator and the security obligator undertake corresponding complementary liability. When the third person and the security obligator are both negligence, based on the principle of contributory negligence, the third person should not take full responsibility but part responsibility under the Article 12.