On The Security And Protection Duty Of The Real Estate Management Corporation

The duty of security and protection originated from German civil precedent theory, its purpose lies in guaranteeing to realize the aim of contract and guaranteeing contract's parties the legitimate rights and interests, having the function of balancing personal rights, interests with social rights, interests and pursuing essence justice. The duty of security and protection is experienced the course that it had guide on precedent and academic .Judge made the duty system .then put it into statute in Germany ,Japan and Taiwan province . Now , The duty of security and protection was regulated in our civil law , but they can not fix the range of the duty body clearly in theory ,and use the word"other society movement"which is an unspecific conception .In the practice of trial ,judge usually brought the real estate management corporation into the range of the duty body, having huge risk and great compensates on the real estate management corporation's shoulders .The legislation made the responsibility of the real estate management corporation extend easily and the state of benefit unbalance appearance .As a kind of contract duty, The duty of security and protection can consist in the process of concluding contract, after establishing contract and before coming in force, in the process of performing the contract and after finishing contract widely .We can also protect the benefits of the special third persons through the system of the incidentally-third-party-protecting contract which was created by German judicial practice. In the paper, I try to introduce and analyze the incidentally-third-party-protecting contract system in German law, and research on the relations between the contract law and tort law. Combing legislation of Germany , France and Taiwan. I define the quality of the real estate management corporation's duty of security and protection , and probe into the problem of cognizance duty and taking on duty. I hope that it will bring guiding effect for practice.This article is composed with third chapters. The first chapter summarizes the real estate management corporation's duty of security and protection . The first will be written in three steps, First of all, I define estate and the real estate management .In the real estate management contract ,the status of both sides is equal, and is not administration relations. Then, I analyze the legal relation basis of the real estate management ,which consists of body ,object and content. In our country ,the owner is the only right body who is proprietary. Through legislation of Taiwan and Hongkong introducing, I think the right body should include about owner ,user and the special third persons . At last, I define the real estate management corporation's duty of security and protection , and prove the legal mechanism justly in law theory.The second chapter is the study on the real estate management corporation's duty of security and protection. First of all, I set forth the reality of the real estate management corporation's duty of security and protection, through seeing about other countries'legislations ,the article try analyzing feature of estate manage act and difference of contract liability and tort liability ,and thinking it as contract duty. According to the contract promising or not, the real estate management corporation's duty of security and protection can be separated into main payment duty and collateral duty. At last, I try to introduce that the content of the duty including about equipment liability, service liability and preventing the third persons'tort liability.In the third chapter, I set forth the real estate management corporation's liability when it breaches duty of security and protection. At first, I analyze liability formation, which involve into damage, act, relative causation between act and damage and the real estate management corporation's fault. On the problem of liability attribution doctrine , I think we should use fault liability doctrine, the standard of fault is someone acting as"a reasonable and prudent man".Then, the article mainly analyzes liability of the real estate management corporation when the third persons violate owner rights. The reason for undertaking liability is that the real estate management corporation and third persons create unreal joint liability. The unreal joint liability is a kind of new contract relation. A scholar whose name is Liu Chun tang said that unreal joint liability involves into five types. When the third persons violate owner rights, and the real estate management undertake liability , they refer to the first type. At last, the legal effect of unreal joint liability include internal legal effect and external legal effect .so, when the real estate management has not been observed duty of care ,the injured party may have a claim for compensation .At last, I claim a new liability insurance system should be created , it can detract risk of the real estate management corporation , and it is a new relief approach besides law system.