The Security Obligation Of A Property Management Service Enterprise To People Harmed By An Object Thrown Or Falling Down From High Altitudes

As the urban development advances rapidly,there have been more and more high-rising buildings,which somehow has resulted in increased cases of objects thrown or falling down from high altitudes.As for how to provide relief for the victims from harm caused by an object thrown or falling down from high altitudes if there is an unknown tortfeasor,the rule was regulated in the Article 87 of the Tort Liability Law.Based on that,a supplement and extension was made in the Civil Code of the People's Republic of China(hereafter referred to as the Civil Code)to perfect the tort liability rule for harm caused by an object thrown or falling down from high altitudes as specified in Article 1254.The Civil Code has achieved a progressive significance for its stipulation and the major amendment is to have regulated the security obligation of building managers such as a property management service enterprise.However,there have long been problems and disputes about whether a property management service enterprise should assume the tort liability for failing to perform the security obligation and about the applicable conditions for the tort liability.The disputes on the theoretical level may cause confusion in the practical application,affecting the judicial fairness.Therefore,an appropriate solution needs to be figured out through a further study on the above issues to ensure both the legitimate interests of victims and the interests balance of the parties,realizing the will of legislation to be standard and specified.After the introduction,the paper was divided into four parts and the main contents are as follows.The first part discussed the basic theories about the security obligation of a property management service enterprise.In this part,the concept of security obligation was dissected to provide justification for taking property management service enterprises as a security obligor based on such theories as risk control theory,reasonable reliance theory and gain-reward theory.Relevant theories about the nature of property management service enterprises security obligation were reviewed to argue that the security obligation of a property management service enterprise is a competitive and cooperation obligation that entails both the engagement and the legal property.The arguments in this part were used as the theoretical foundation for the discussion on related important liability conditions in following parts.The second part focused on the interpretation of the security obligation of a property management service enterprise to people harmed by an object thrown or falling down from high altitudes.In this part,analysis was made into the relationship between the security obligation of a property management service enterprise as stipulated in the 2nd paragraph of the Article 1254 in the Civil Code and the general security obligations as specified in Article 1198 of the Civil Code.Through comparison between the two articles,the paper demonstrated a fundamental difference between the obligations specified in the two articles and the difference is attributable to the practice needs.Though belonging to the same domain of security obligations,they are of different mechanisms,so the application rules of the security obligations specified in the two articles should not be mixed and should be applied accordingly so as to provide a sound relief for the victims from harm caused by objects thrown or falling down from high altitudes and ensure fairness in the appointment of losses.The third part delved into a reasonable limitation on the performance of security obligation by a property management service enterprise to people harmed by an object thrown or falling down from high altitudes.In this part,the reasons were stated as to why a limitation standard is supposed to be set up for the performance of security obligation by property management service enterprises to people harmed by an object thrown or falling down from high altitudes and the principles of law and economics and fairness of justice were determined to be the theoretical basis for the prescription of the standard.To that end,this part also sought to put forward a workable solution from the combined perspectives of theories and judicial practice.Questions were briefly analyzed such as whether a property management service enterprise has performed the security obligation,how to make a judgment over it and what the standard for the judgment should be.It was deemed by the author that a clear establishment of the reasonable limitation on security obligation can be achieved by integrating the legal standard,industry standard and the standard of the judge's comprehensive discretion in which other standards such as “adequate care” and profit earning should also be taken into account.The fourth part studied the tort liability of a property management service enterprise for failing to perform the security obligation in the harm to people caused by objects thrown or falling down from high altitudes.In this part,discussion was developed about the compensation relations between a property management service enterprise and the tortfeasor when harm was caused to people by an object thrown or falling down from high altitudes.It was clarified that a property management service enterprise and the torfeasor should assume the tort liability in proportion to the extent of their respective faults,but the proportion of assuming the tort liability is only valid within the two parties.When compensating the victim,the property management service enterprise should be fully liable for the compensation,if the direct tortfeasor is unknown or cannot be determined for the time being or is in insolvency.After making compensation,the property management service enterprise shall be entitled to be reimbursed by the tortfeasor.The study purpose of this part was to perfect the identification of performance of a property management service enterprise in security obligation to people harmed by an object thrown or falling down from high altitudes and promote a reasonable appointment of the tort liability between the property management service enterprise and the tortfeasor,aiming to provide a sound and effective relief for the victims..