Research On The Security Obligation In Tort Law

The promulgation and implementation of The Tort Law of the People's Republic of China is an important achievement in the field of tort law in China.The thirty-seventh article of this law clearly stipulates the security obligations of the manager of public places or the organizers of mass activities in the scope of tort liability.And it has a great guiding significance on the academic research and judicial practice of our country.However,in terms of foreign legislation and domestic judicial practice,the security obligation is a system which is relatively complex in the civil law system of various countries.The formulation of law can not cover all the complicated and ever-changing tort cases in the real life,and the discretionary power of the judges is quite extensive.In addition,the theoretical research and legislative practice of the tort law start relatively late,which leads to the phenomenon that the judicial practice can not be judged due to the lack of clear legal basis or the same case is judged differently,so it is of great practical significance to study this problem.The core content of this article includes four chapters:The first chapter is an overview of security obligations in the tort law,and several issues are discussed from the concept and content of the security obligation,the characteristics of security obligation in our country and the theoretical basis of security obligation.The main content of security obligation is the prevention and control of danger and the assistance after the occurrence of damage,and it is characterized by the analysis of the subject and the content of obligation.The theory is based on the theory of trust relation,reward theory,theory of the allocation and control of risk and theory of antecedent behavior.The purpose of this chapter is to clarify the basic concepts,and then find out the possible problems of legislation bystudying its contents,characteristics and theoretical basis.The second chapter carefully explores the existing problems of the current legislation of security obligation.Through the grasp of the characteristics and the judicial practice of our country's security obligation in the first chapter,five problems existing in academic theory research and legislation are found that the legal nature of security obligations in tort law is not clear,the scope to apply the obligation is too narrow,the source of obligation is not comprehensive,the provisions on supplementary duties is imperfect and the regulate of“reasonable limits” is inadequate.The third chapter is a comparative study with the security obligation of foreign countries,and specifically studies five countries of the two legal systems: the duty of care in the law of the United Kingdom,the duty of care in the American law,the general security duty of care in the German law,the security duty of care in the law of Japan,and the obligation of security and the responsibility of the supervisor of France.And on the basis of extraterritorial legal research,it thinks about the enlightenment to our country's legislation and judicature,and draws five inspirations,namely: the enlightenment to the scope of the application of security obligation,the inspiration to the source of security obligation,the enlightenment to the application of supplementary liability,the enlightenment to the specific standard of “reasonable limit” and other aspects,and it is hoped that our country can learn useful experience from the study of extraterritorial tort law and improve our legislative construction.The fourth chapter,aiming at the problems found in the second chapter,puts forward some suggestions to optimize the security obligation in China's tort law:clarify the legal nature of the security obligation,expand the scope of application of the security obligation,clarify the source of the security obligation,clearly apply the relevant provisions of the supplementary liability,and set specific standards for the provisions of “reasonable limit”.On the basis of the above chapters and understanding the concept,content and characteristics of the security obligation,this chapter gives some suggestions on the existing problems of the present legislation mentioned in the second chapter.Through the study of this paper,some thoughts on the academic research and judicial practice of security obligation are put forward,and some countermeasures and suggestions are provided in combination with the situation of our country and the present situation of legislation to improve the existing problems.