Research On The Concurrence Of Security Obligations And Collateral Obligations

With the rapid development of social economy,the interaction behavior between people is becoming more frequently.No one can be "natural person" that independently live in their own "island" but a “social man” who connect with society.To adjust to the improvement of the society,on the one hand,the law should encourage more constant and frequent interaction among people and it also request that people should never damage the lawful rights and interests of others when they are doing their interaction behaviors.It even requires that a specific social subject should actively protect the personal and property safety of others.In this context,security obligations and collateral obligations come into being.Although the objective and value orientation between security obligations and collateral obligations are different,both of them are expressed as positively to do or not to do with certain behaviors so that they can safeguard the personal and property safety of others.Since people's security right is the basis of human rights,which is also a right the legislator and the judiciary should focus on to protect.The appearances of security obligations and collateral obligations are extremely similar,a same illegal action can often meet the competing elements of the two obligations and get the coopetition of them.Theory research of the coopetition issues in our nation's academic circles is relatively scarce.In judicial practice,because of the difference in understanding of the judiciary and the lack of specific legal norms,guidelines will often produce the legal consequences of different legal results,which undermines the judicial authority to a certain extent and is not conducive to the realization the pursuit of nomocracy of the "Social fairness and justice".Fuzzy thinking and misunderstanding of what course to take in practice reflects the complexity of the co-opetition issues on the one hand,and also reflects the urgency tosolve this co-opetition problems.Based on this,this thesis will discuss the following several parts of the co-opetition issues in-depth to make contribution to help us understand the co-opetition problem correctlyIn the first part,the author draws forth the problem of security obligations and collateral obligations cooperation by means of the “Shanghai Yinhe Hotel case” in2006 Supreme Law bulletin.Through the detailed analysis of the case and the judgment of the first and second instance,it points out the previous related disputes about the processing mode of the cooperation between the two in the judicial practice circle and the theoretical circle.In the meantime,it explains the author's several reflections on this case and the following parts are all developed around these reflections.In the second part,on the basis of the author's deep analysis of the intension and extension of security obligations and collateral obligations,the author makes simple demarcations on the two kinds of obligations and makes definitions on the cooperation between the two,explaining the meaning of cooperation and carrying out detailed discussion on the nature of cooperation.In the meantime,it expounds three classic states of the cooperation,which can provide theoretical guidance to our correct understanding of the cooperation between security obligations and collateral obligations.In the third part,the author specifically introduces relative rules and regulations about security obligations and collateral obligations in China,systemizing the cases about security obligations and collateral obligations in the Supreme Court and local court,summarizing the categorization processing mode of the cooperation between the two in Chinese juridical practice.In the meantime,it also points out elements that should be considered if the victims or compensation obliges want to achieve optimal relief under Chinese legal rules.Through this part,the victims or compensation obliges can have a clear understanding of the relief mode of Chinese security obligations and collateral obligations so as to protect their legitimate rights and interests better in practice.In the fourth part,from the perspective of Comparative Law,it introduces theprocessing mode of the cooperation between security obligations and collateral obligations in representative countries from the civil law system and Anglo-American legal system in detail,pointing out that these processing modes are of reference significance to China.This horizontal comparison can provide beneficial reference to our understanding and treatment of the cooperation between security obligations and collateral obligations.In the fifth part,the author introduces three thoughts about perfecting Chinese security obligations and collateral obligations cooperation relief mechanism from a macroscopic legal system so as to provide theoretical reference for solving the difficulties about the cooperation between security obligations and collateral obligations under the premise of avoiding confrontations between legal systems.