On The Determination Of Tort Liability For Breach Of The Duty Of Safety Protection

In 2003,the "Interpretation of Personal Injury Compensation" was promulgated,and Article 6 introduced the theory of security guarantee obligations.The 2009 Tort Liability Law was passed,and the system of security guarantees was first laid down in the form of legislation.In the development of the past decade,the system has effectively protected the legitimate interests of right holders on the one hand,and gradually revealed its inadequacies on the other hand.This paper mainly takes four typical cases as the starting point.Through the comparative analysis of the cases,it finds that there are problems in the determination of tort liability that violates the security guarantee obligation.The performance is mainly:in practice,there is a"classification of different cases" for the determination of tort liability.The judgment result of "different judgments" and "different responsibilities".It is also because of the problems in the identification of tort liability that lead to the flooding trend of the application of security guarantee obligations,which increases the responsibility of security assurance obligors.The reason for this is that the problem of the determination of the tort liability for breach of the security guarantee obligation is mainly caused by the following two points.First,the norms of security assurance obligations are ambiguous,mainly in the three aspects of the subject matter of the Tort Liability Law and the judgment criteria of the breach of obligations and the nature of the supplementary liability;second,the lack of a strict system of tort liability identification,Mainly manifested in the lack of integrity and logic in the process of infringement liability determination.In order to identify the tort liability for breach of security obligations,first of all,it should proceed from the norms of security obligations and correctly understand the norms of security obligations.It mainly includes three aspects.One is to rationally define the rights subject and the obligation subject of the security guarantee obligation.The second is to use the relatively objective criteria to judge whether the security guarantee obligation is violated or not.The third is to correctly understand the nature of the supplementary liability for breach of the security guarantee obligation.Secondly,starting from the identification of the tort liability,based on the constituent elements of the general tort in China's Tort Liability Law,combined with the norms of security obligations in the Tort Liability Law,clarify the infringement liability identification method that violates the security guarantee obligation,strictly Investigate the various elements of the tort liability.The first step is to examine whether the subject is appropriate or not.According to the correct understanding of the requirements of the safety assurance obligations,the examination of whether the subject involved is in conformity;the second step is to investigate whether the fact of the damage exists objectively;the third step is to judge whether the act of inaction is illegal.In cases of breach of security obligations,the main manifestation of infringement is inaction.Therefore,it is first determined whether the actor has a security obligation,and then judges whether it violates the obligation.The fourth step is to judge whether there is a legal causal relationship between the illegal act and the damage fact,and the conditional say+quite causal relationship can be used."The mode of investigation." The fifth step is to examine whether the perpetrator has a subjective fault and determine whether the infringement liability is assumed or not based on whether there is a fault.For each specific requirement,the examination and determination shall be carried out in turn.If one of the requirements is not met,the latter need not be further examined,and the tort liability is directly determined to be unsuccessful.Finally,the allocation of direct liability is determined according to the degree of fault of the security assurance obligor.At this point,the infringement liability for breach of security obligations has been completed.