On The Limits Of The Operator's Security Obligations

The Supreme People's Court published “Interpretation of Several Issues on the Trial of Personal Injury Compensation Cases"successfully borrowed from the German law on the transaction security obligations system, and thus created the Chinese Law on the security obligations. Article 37 of the Tort Liability Law promulgated in 2009 has for the first time stipulated in the form of legislation the tort liability for breach of security obligations and filled the gaps in the legal level of the provisions on security obligations in China, provides the basis for the right of claim. However, due to the tort liability law, the provisions of the relevant judicial interpretation of the principle of excessive, abstract and the Supreme Court of the lack of guidance cases, to a large extent caused by the judge in the case of similar cases in the application of legal confusion and doubts. According to incomplete statistics, in the author search for nearly 150 cases of violation of the operator's security obligations in the case,only less than 30% of the case operators are completely not responsible. And in nearly 70%of the cases the operators are without exception to bear the responsibility for breach of security obligations, and even in some of the referee instruments, although the court finds that operators have to do the security obligations, but still based on the operator"Strong party" and asked to bear part of the responsibility. In this way, in the maximum and even limit the protection of the relative interests of the same time for the operator is extremely unfair,the operator's security obligations should be a reasonable limit.This article attempts to distinguish the operator's security obligations from the horizontal to the type of source as a standard. The danger comes from the place of use of the place of business, the risk is from the third person, the risk comes from the relative person's own and the danger from the five types of force majeure,combined with the operator of different types of different people bear different security obligations, to give each type of security obligations different specific reasonable limit to determine the criteria, and supplemented by other reasonable limit the factors in order to be able to judicial practice to deal with such cases to provide some more useful reference to solve the real limit of the relative protection of the relative injustice of the problem, which can really show.