A Research On Supplementary Responsibility Of The Security Obligor Under The Intervention Of The Third Party

Article 1198 of our country’s "Civil Code" stipulates that in the case of infringement by a third party,the responsibility of the security obligor is "corresponding supplementary responsibility" when he fails to fulfill his security obligations.The liability determination of the obligor is unique,and it also plays a positive role in the compensation and relief of the infringed party’s damage.However,due to the lack of legislative provisions on this form of liability and the divergent views in theory,the current provisions are not sufficient to provide comprehensive guidance for solving such cases,and still need to be explained and improved in light of practical issues.There are differences in the configuration of liability among the infringing subjects in cases of security obligations under the intervention of a third party.The basis of this is firstly the difference in the source of responsibility for the direct execution of the tort and the violation of the safety guarantee obligation,and secondly,the respective acts of the infringing third party and the safety guarantee obligor also reflect the direct cause and the indirect cause in the cause of the tort damage.In addition,the third party is limited to intention,and the security obligor is limited to negligence.The differences in these levels determine that the third party should bear the main or even all the responsibility for the tort liability,while the security obligor only bears the corresponding supplementary responsibility.In practice,there are still problems such as unclear proportion,lack of sequential interests,and complicated distribution of responsibilities in special circumstances in the specific responsibilities of security obligors.First of all,the scope of the liability should be "corresponding" rather than "complete",and the basis of the proportion is the scope of the direct infringer’s responsibility.The determination of the proportion of responsibility should be in line with his fault and causal force,and comprehensively consider safety and security.Factors such as the obligor’s ability to prevent damage,economic status,and the possibility of the infringed party’s self-protection are determined.Secondly,there is no need to supplement the safety guarantee obligor fully borne by the third party in terms of the method of undertaking,and when the third party cannot fully undertake the responsibility,the safety guarantee obligor shall bear the part that the third party cannot bear within the determined proportion of responsibility according to the order..Finally,in the special case where the third party is unknown and there are several supplementary responsible persons,the scope of responsibility that the security obligor should bear should be clarified,and his responsibility should not be aggravated or ignored.It is necessary to limit the scope of application of the relevant provisions of the "Civil Code" contract to a certain extent to ensure the assumption of supplementary liability for tort.The existence or non-existence of the right of recourse for the security obligor has changed in legislation and is finally established in the Civil Code.The original purpose of supplementary liability in such cases is to supplement part of the liability that the third party cannot bear.Partial liability is supplemented.Judging from the practical results,it should be clarified that the premise of the realization of the right of recourse is that the infringing third party can be identified and the security obligor has fully fulfilled the supplementary responsibility,and the scope of the right of recourse should be determined to be full recovery under normal circumstances,only in part.In the event that the security obligor needs to bear the final responsibility,part of the recovery is made,and the recovery method is to sue separately.Considering the responsibility of the security obligor and the legal order under special circumstances,it should also be constructed on the basis of affirming the right of recourse,in which the security obligor has a serious degree of negligence,there is continuous incomplete performance of obligations,and the third party bears various kinds of obligations.Limit the recovery mode in the case of liability and other circumstances,and implement it by refining the supplementary liability or dividing the dual range of the own responsibility and the supplementary liability.