Research On The Guarantee Of Security

In all kinds of service industry, in violation of the security obligation ofinfringement cases are increasing. Article37of the tort liability act the promulgationand implementation of security obligation system reflects the importance of the casesof infringement of such legislation. The provisions of the security obligations to thejudiciary fair and reasonable to judge such infringement case provide a legal principle,for academic research and discussion provides a clear direction. However, because ofthe time the implementation of tort law in China is not long, security obligation systemhas its unreasonable. This paper in combination with judicial practice case, variousscholars point of view study the security obligation. Through judicial practice caseand judgment of scholar’s viewpoint differentiate in violation of the securityobligation infringement responsibility, from the viewpoint of this article. Mainlysummarized and analyzes the following aspects:First, the main body of safety: the public as an object for profit-making activitiesand provide services to the public places. For mass activities of the organizers, Ithink if there is a profit should be combined with the nature, if there is a perfectorganization management system, whether to peer respect the rights and obligations ofboth sides. In addition, the suggestions to the specific definition of "such as" theword, for example, can collect fees including the closed management of parks, schools,rental housing, social welfare centre, hospitals, etc., in case law is abused and thereferee can not depend on. At the same time, we also can allow judges in practice, themain responsibility with the method of analogy to expand. Of course, the judge shouldbe lawful, reasonable in analogy.Second, imputation basis: although in the judicial practice case with presumptionof fault liability and fault liability, this article adopts the no-fault liabilityprinciple, provisions of the "did not fulfill the duty security", do not need to beinfringement all prove that, do not need the infringer disproof. If the infringingparty’s premises or the damage happened in mass activities of the organization, it isenough to prove infringement party did not fulfill the duty of proper attention. Itis used in the Anglo-American tort law "the facts from the principle".Third, constitutive requirements: mainly analyzes how to determine violation of security obligation, the key is whether the combination of two aspects:(1) in violationof the provisions of the law of obligation,(2) whether the violation of the obligations,kindhearted administrator in the case of there is no specific provision in the law,the person assuming the obligation of security than other general infringerresponsibility standards are higher.Fourth, in violation of the security obligation infringement responsibility: thelaw of compensation liability is not order on the compensation or the amount ofcompensation or other clear rules, easily in the judicial practice caused greatinconvenience. In addition, safety guarantee obligation after the supplementresponsibility, whether can recover from the third person, also is not explicitlystipulated in the articles. Propose legislation explicitly in the third one, therefore,cannot be liable for damages, the victim shall have the right to require the safetyguarantee obligation supplement responsibility, here is the order of compensation isalso on the amount of compensation.Finally, the safety guarantees obligation legislation meaning to generalize andsummarize and find security obligations at the same time the perfection of their advice.