The Responsibility Of Security Protection Under Tort Law

Tort Law of the People’s Republic of China which came into force on July1,2010is a great move of Chinese legal system.“The manager of a public venue suchas hotel, shopping center, bank, station or entertainment place or the organizer of amass activity shall assume the tort liability for any harm caused to another person asthe result of his failure to fulfill the duty of safety protection.” The Article37of TortLaw plays an important guiding role in the judgment practice of China. However, theResponsibility Of Security Protection is a complicated part under civil theory system,and there are varieties of tort cases which the regulations cannot include, in addition,the litigation and research of tort law started late in domestic, therefore, we need tomake more research on how to understand and use it.This paper is based on China’s current tort law system and legislative practices,theoretical discussion of other countries as object to deeply demonstrate the chaoticphenomena of China’s juridical practice.And this thesis is using methods ofcomparative analysis, hermeneutic etc to emphasis on historical origin, principle ofsuiting responsibility and insufficient of security obligations by comparing the history,current situation and development of China’s security obligations with other countries’security obligations. Moreover, the thesis is also put forward suggestions to furtherclarify the security obligations to realize the improve and perfect the obligations.We are considered that the legal basis for responsibility of security protection isthe risk control theory, the security protection responsible person clearly know thepotential risk than other person, who will correctly take measures to avoid and protectthe risk happen. On the basis of risk control theory, this thesis content that the securityprotection responsible person who violates the responsibility of security protectionshould apply the fault-presuming principle, thus the burden of proof would be on thesecurity protection responsible person rather than the victim. Since compare to victim, the security protection responsible person is at dominant position, and the relocate ofthe burden of proof could reasonably protect the legitimate interest of victim.There are two kinds of responsibility of security protection under the tort law,first, the security protection responsible person violate the responsibility of securityprotection without the involve of the third party; second, the security protectionresponsible person violate the responsibility of security protection with the involve ofthe third party. The former one is the main discussion point of this thesis, whichcontent that the security protection responsible person shall burden extraresponsibility and have the right of recourse under that circumstance.There are some unreasonable point of the related law and regulations forresponsibility of security protection, for instance, the protect scale about responsibilityof security protection is too small, as the development of the society, it is necessary tohave some legislation and interpretation of the right of recourse in the responsibilityof security protection. For above issue, the thesis has provided several relatedsuggestion and solution thereof for reference.