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Discussion Security Obligation

Author: WangChuanWei
Tutor: HanQiang
School: East China University of Political Science
Course: Legal
Keywords: safety security obligation duty of care contractlaw property of the scope tort low property breach of contracttort liability responsibility principle
CLC: D913
Type: Master's thesis
Year: 2010
Downloads: 367
Quote: 0
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Abstract

Basic definition of security obligation is that, in a certain legal relationship and under an agreement, one of the parties assumes obligations of concerning and taking care, risk prevention and overcoming, loss prevention for personal and property of another party by laws or agreements. The obligations relate to all aspects of livelihood security, with great significance of research.Firstly, the theory, from the point of theoretical origin of security obligations, discusses quasi-private commit in Roman Law, regulations on security obligation in the <German Civil Code>, security obligations in the French law, security concern obligation in the Japanese Law, duty of care in the Common Law, security obligation in Taiwan as well as the security obligation in China. There are so many profound theoretical origins for security obligation, which remain constant development and improvement in China.Secondly, considering the infinite diversity of social life, and the relative need for human protection, it seems to not limit the definition of security obligation as well, so to maximize the system function of security obligation. The theory discusses from the basic definition, extends to application scope of security obligation, and makes them be specified, typed, identified standardized. The application scope of security obligation is mainly the security obligation of operators and organizers of social activities, including hotel bearing security obligation of consumers, banks and other financial institutions bearing security obligation, tourism business operators to tourists, security obligation of sport game organizers, security obligation of other operators and organizers of social activities, etc.; the application scope of security obligation also involves all aspects of livelihood security, including school undertaking security obligation of students, employer to employee, property management company to house owners, security obligation assumed by the "master" of in personal social activity, product security obligation, medical security obligation, other types of security obligation and so forth. Security obligation should not be used as a special type of infringement to be provided in the future Civil Code, but as the general provisions of civil law, to provide the base of claim for victims unable to be typed.Thirdly, nature of security obligation is discussed in this theory. The nature is the contract law obligation or the tort law obligation in the end. It is divergent. From investigation and analysis under rules and regulations of contract law and tort law, it is concluded that the perpetrator undertakes security obligation of the plaintiff’s, which may be a duty on contract law or a duty on tort law. This paper argues that no matter contract law or tort law is expanding its scope of application, and blurred boundary between them is the development trend. Such a trend is not a bad thing, on the contrary more conducive to the protection of civil rights. Contract law and tort law obligations are different in the obligation nature, the interest protection, obligations relative and aims of the system. After distinction, it can be seen that, to some extent, security obligation on tort law has more powerful protection and broader protection.Finally, this theory, from the liability perspective of violation of security obligation, discusses that the liability types include tort liability, breach of contract and the liability of competing. In liability issues on violation of security obligation, applying tort liability and breach of contract is sufficient to protect the injured party. The responsibility principle of violations of security obligation does not apply the liability without fault, mainly apply the fault liability. Under special circumstances, it is applicable presumption of fault liability. The responsibility principle of violations takes the liability without fault as the principle. The fault liability is implemented for only exceptions. Liability of violation of security obligation is constituted by four elements that perpetrator is not entirely security obligation, that the victim is damaged, that there is a causal relationship between damage fact and violation, and that perpetrator of violation of security obligation has the fault. Basic element of liability for violation of security obligation is the existence of the violation. There are differences between liability for violation of security obligation and tort liability in the scope of assuming, responsibility constituent element and burden of proof, litigation limitations as well as the scope of compensation. The person with rights can accordingly choose and require what kind of responsibility obligor bears.People’s livelihood security is a necessary requirement for building a harmonious society. Improving and perfecting the security obligation reflects the humanistic care of the law.

Discussion Security Obligation

Abstract

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