Study On Liability For Violation Of Security Guarantee Obligations

With the progress of economy and the development of society,the cases where the rights and interests of the counterpart are damaged due to the failure of the obligor with the security to fulfill such obligation guarantee have become common in recent years.In Chen Sanzhen vs.Fenghuang County Yunlong Drifting Co.,Ltd.for breach of the security obligation,the court declared that the Defendant fulfilled its security obligation and held no fault in the damage to the Plaintiff on account of the fact that the Defendant had done its best to remind of drifting on the attraction ticket and set up warning signs on both banks of the river.However,based on the Defendant’s economic benefits and according to the balance of interests theory,the Defendant should provide the Plaintiff appropriate economic compensation.In Liu Ziliang vs.Public Place Manager of the Second People’s Hospital of Dongying,the court held that the hospital should provide effective warning and maintenance for the bathroom to prevent the visitors from being injured due to an accident.The Defendant took prompt and proactive treatment measures following the Plaintiff’s fall,so it was decided that the Defendant assumed the secondary responsibility.Both cases are all disputes about the security obligation.Nonetheless,the courts set inconsistent principles and standards for judging whether the obligor has fulfilled the security obligation to a reasonable limit.Article 6 of Interpretation of Some Issues concerning the Application of Law for the Trial of Cases on Compensation for Personal Injury(hereinafter referred to as the "Interpretation")and Article 37 of Tort Liability Law have stipulated the security obligation system,and the latest Tort Liability Part of the Civil Code(Draft)(Draft of the Third Revision)also makes relevant provisions on this issue;however,controversy exists over the nature of security obligations,reasonable limit and the distribution of liability under third-party torts,which leads to constant new issues in current judicial practice.On this account,exploration into the nature of security obligation and determination of the applicable standards of security obligation will ease the issues in judicial practice.Based on the purpose of solving the real dilemma,the present paper can be divided into four parts.The first part briefly describes the concept,nature and origin of security obligation.In terms of existing legislative provisions,the concept of security obligation remains quite vague.The nature is mainly based on statutory obligations,with the exception of agreed obligations,and the origin is mainly derived from the principle of good faith.In short,this chapter aims to establish the most fundamental structural framework of security obligation,and lays the foundation for the in-depth exploration hereinbelow.The second part focuses on the development of relevant foreign legislation and the development of security obligation in Taiwan,China.An investigation shows that that the provisions on security guarantee in Chinese legal system remain only on the baseline,and the law only requires those who assume obligations to fulfill such obligations externally,and the regulations on the obligor in terms of cognition and humane care are absent.Therefore,exploration in this part provides valuable experience to establish the sound security obligation in China.The third part starts with the changes in the legislative provisions on security obligation in China.It compares the Tort Liability Law in effect with the Tort Liability Part of the Civil Code(Draft)(Draft of the Third Revision)in the provisions on the security obligation.Findings show that main issues are still focused on those regarding subject scope and accountability.So developments and deficiencies and improved legislative suggestions are summarized in this part.In the last part,the author puts forward suggestions from three elements of the security obligation: doctrine of liability fixation,constitutive requirements,and accountability.The main purpose is to establish strict liability as the doctrine of liability fixation and the complementary liability as the accountability mode,and further improve the complementary liability system to finally achieve the purpose of tackling issues and improving the system.