Research For The Identification Of Security Obligations Of The Operators

The research object of this paper is the identification of security obligations of theoperators. The paper comprises six sections except the introduction.The first section is a brief introduction to four cases selected. The four cases selected areall cases of the identification of security obligations of the operators in the judicial practice.This section by analyzing and summarizing the judgment and justification of identificationdetermines the focus of the dispute, thus the problems this paper intends to discuss areintroduced.The second section is about the general theory of security obligations. Firstly, define theconcept of security obligations in this paper. Secondly, briefly review three kinds of theoriesabout the nature of security obligations and elaborates the author’s view. Lastly, briefintroduce to the main content of the security obligations including the hardware and thesoftware.To use for reference, the third section is about the identification of security obligations ofthe operators on the extraterritorial. That is Germany’s “Verkhtehrspflicen”, France’s“obligation de sécurité”, Japan’s “security attention obligation”, Taiwan’s “transactionsecurity obligation” and “duty of care” on the common law.The forth section summarizes three main ideas of Chinese scholars to the identificationof security obligations of the operators. The first one is the judgment standards ofidentification including legal standards, industry standards, contract standards, reasonablestandards, general standards and special standards; the second one is the consideration factorsof identification including profit or not, the sources of the risk and damage, the cost ofprevention and control the risk or harm, the predictability of the danger, the reasonablereliance and the feelings of the common people; the third one is the categorizations ofidentification. The Author comments on three ideas of Chinese scholars to the identificationof security obligations of the operators and summarizes the advantages and disadvantages ofevery idea.The fifth section is the conclusion of the paper. Not only is the identification of securityobligations of the operators in accordance with certain standards or consideration factors, buton the basis of the categorizations of identification harmonized application of legal standards, contract standards, industry standards, reasonable standards, general standards and specialstandards and different kinds of consideration factors conjunctively.