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民法中的安全保障义务

作者: admin 来源: 未知 时间: 2017-05-29 阅读: 在线投稿

The Supreme People's Court promulgated the "on some issues of applicable law in the trial of personal injury compensation case interpretation in 2003" (hereinafter referred to as the "interpretation"), established the site management of the safety and security obligations, the obligation scope and responsibility, but the academic and practical circles have not on the theoretical basis, security the nature of the duty and responsibility in the formation of a consensus. The discussion of this problem is of great significance in understanding and grasping the security obligation and its application in judicial practice.

1., the theoretical basis of security obligations.

According to modern theory of civil law, on the theoretical basis of place of management of security obligations are the main theories of the honesty and credit, risk control theory, the theory of profit, theory of trust and the obligation of contract theory, etc.. These theories are not unreasonable, but if we take one of them as the theoretical basis of security obligations, they are slightly inadequate. As the basic theory of civil law, the theory of honesty and credit should be regarded as the basis of a certain system theory, but it is not clear as the theoretical basis of the theory of security obligation. The risk control theory has seen the management's control over the dangerous sources in the management place, but it is not applicable on all occasions. Such as bus theft, bus companies are no more powerful than passengers. The limitations of profit making theory are obvious, too. In many cases, such as the free exhibitions held at the mall, they are nonprofit. The reliance relationship is based on the ability to control the risk of managers, but in some cases passengers do not seem to place their hopes on the bus company, as in the case of a bus robbery.

The theory of contractual obligation fails to explain the issue of damages for victims who have not entered into a contractual relationship with the premises, such as when someone has just entered the gate of the hotel. Therefore, the legal basis for the security obligation of the management place can not be satisfactorily explained from the above theory.

The author believes that the theoretical basis for the obligation of security should be based on the principle of good faith and the development of a general sense of security obligations. The duty of care is a German judge according to the principle of honesty and credit, based on the need of distributive justice, first expand the risk behavior through legal precedent is not a responsibility, abstracted as the attention of the general security obligations of all duty general clauses. In the event of the formation or continuation of a particular source of danger in the event of a transaction or social activity, in accordance with the requirements of the general safety care obligation, the necessary safety measures shall be taken to protect others from harm. The attention of the general security obligations lead to the result of injury occurred in violation of the law clearly stipulates, not as an obligation or contractual obligation, the obligation of security for their own people should not bear the liability for compensation as. Therefore, the theoretical basis of security obligation should be based on the principle of good faith to develop the general duty of care.

2., the legal nature of security obligations.

(1) Comparative law.

1) france. In French law, the so-called security obligations, in broad sense, do not infringe on other people's personal and property security care obligations, involving both tort law and contract law. The boundary between the two legal fields of tort law and contract law is not clear in France, so it is full of equal consideration. 7

2) japan. In Japan, there is no explicit provision for security obligations in the civil code. After the war, Japanese cases used the concept of "security obligations" and "security care obligations". A point of view of Japanese scholars believe that the violation of duty of care will be security obligations under the contract status classification, if the contract is the main obligation as the obligation to protect the safety guard of the contract is in breach of the obligations of the breach; otherwise it does not constitute infringement. Another view is that breach of security obligations both breach of contract liability, there is also room for infringement damages. The duty of security is not only the obligation of contract law, but also the obligation of tort law, and it is not necessary to distinguish between them. 8

3) germany. The 617th, 618 and 619 articles of the German civil code clearly stipulate the employer's duty to protect employees from diseases and to take protective measures, and stipulate the forcible nature of the obligation to protect. The German Supreme Court's earliest case involving security obligations was the linen blanket case. A lady went to a department store to buy Linen blanket as a salesman for the women selected flax blanket is taken off, the other two volumes first on the side of the carpet fall down and hurt the woman and her children. The German Supreme Court held that the shop was not responsible for taking care of the protection due to the negligence of its employees and should bear the liability for damages. Because of the limitations of the progressive legislative model of German tort law, the above-mentioned cases have been relieved by expanding the application of contractual liability. 9

(2) the legal nature of the obligation of security.

On the legal nature of security obligations, the contract liability and tort liability, the liability of gender. The tort liability, namely place managers negligent in the management process, so that the relative person and property at risk is not necessary, provided the opportunity for the third person tort, this is a violation of statutory obligations, should bear tort damage compensation responsibility. This can be analyzed from the four elements of tort liability. First, illegal activities. First, managers in violation of the law of obligation of safety guarantee is the main form of management place of improper management of LX, but because of the improper management and make the relative people third people suffered from the infringement consequences, which belongs to the breach of statutory obligations in nature, constitutes a violation of. Second, damage the facts. The fact of damage refers to a certain act, which results in the infringement of personal rights, property rights and other interests of the subject of rights, and causes the reduction or loss of property and non property interests. Two cases cited at the beginning of this article is universal, which basically represents the victim personal, property damage, It goes without saying that. Third, causality. In the case of violation of the safety guarantee obligation by the third party, most of the managers have not implemented any positive acts, but rather negative ones. The act of omission is a kind of obligation which violates the law and has a certain obligation to others, because it has not been implemented or has not been fully implemented, causing damage to others. The act of omission mainly shows that the obligor does not exclude the danger of the threat to other people's interests, or does not interrupt the cause and effect chain between the danger and the loss of the victim. In the presence of such a danger or chain of causation, the third person's positive injury causes the loss of personal and property of the victim, which is called infringement caused by the third factor intervention.

In this case, to determine the managers liable for damages to the victim should be the main risk factors of positive injuring third people involved in cover management caused by the violation of security obligations based on and off between this risk and the loss of the victim to judge the causal chain. If the intervention factors did not cause the violation of security obligations caused by the effect caused by the substantial change, only with the original tort in combination with the results have a certain extent of damage, cause and effect chain did not change, security obligations should still be on the final results for the damage.

If the intervention factors fundamentally changed the relationship between cause and effect factors in the chain, the only factor as the damage results, then the security obligations to extricate from the reason of causality chain, the damage of the irresponsible. However, for this kind of judgment standard, the theory circle is quite controversial at present, and there is no unified understanding. The author tends to draw on the foreseeability theory of Anglo American tort law. According to the theory of predictability, if the negligence of the infringer provides an opportunity for the third factors involved, and the infringer can foresee the factors after the intervention will damage, causes the infringer of negligence should be damage. The theory holds that anyone is responsible for the predictable natural consequences of his actions. Fourth, subjective fault. Fault refers to the subjective state of the behavior of its own actions and their consequences. In violation of the security obligation stipulated by law, the administrator violates the legal duty in nature and naturally finds that it has subjective fault (negligence).

To sum up, the management violates the security obligations stipulated by the law and conforms to the four elements of tort liability. In addition, does it conform to the elements of other civil liabilities? According to the civil law theory of civil law, civil liability is divided into two categories: tort liability and contract liability. In addition, unilateral promise, contracting fault, unjust enrichment and no cause management are also included. The civil liability for breach of the security obligation in this article does not accord with the legal provisions of the latter four elements. The analysis of the nature of contractual liability has already been explained in the discussion of contract liability, which is not superfluous here.

Therefore, it can be concluded that the violation of the security obligations stipulated by the law is a violation of the legal obligations in nature, and belongs to the type of tort liability in the form of liability.

(3) the difference between the security obligation and the state responsibility (police responsibility).

In hearing the management of damages in the case, there have been such cases: due to the omission of property management, residential owners in the district by third people, property infringement, hit the police call for help. But the police did not arrive in time, causing the victim's damage to expand and the perpetrator escaped. At this time, when the victim sued for property companies to undertake damages, the police as the maintenance of public security organs of the government should also be held accountable? If so, what is the nature of the responsibility? This involves the distinction between the obligations of the state (police responsibility) and the security obligations in the management of damages in the place of compensation.

As far as China's current legal provisions are concerned, there are several differences in the following aspects: first, the nature of security obligations and state obligations (police responsibilities). The national security obligation is a constitutional obligation. China's "constitution" clearly stipulates: "the state protects the citizen's legitimate income, savings, houses and other lawful property." People's Republic of China's personal freedom is inviolable. "This is a constitutional right of every citizen, the state is based on the life and property of citizens constitution for safety and security obligations. The security obligation of the place manager is a civil obligation, which is based on the relevant provisions of China's civil law. Secondly, the subject of rights is different. The rights holder of the national security obligation is all citizens, and the main part of the safety guarantee obligation of the place manager is the consumer, potential consumer and any other individual who actually enters the management place. Third, the standard of judgment is different. In violation of state obligation standards mainly represent the state to fulfill the security obligations of civil servants perform their duties in the process of the procedure and the entity is in accordance with relevant laws and regulations is the main provisions of the relevant administrative laws, and managers in violation of security obligations of the 1 avoidance criteria for judging the manager is the obligation of security rights is according to the laws and regulations of civil and related industries to the general duty of care. Fourth, the form of responsibility is different. The form of liability that the state fails to fulfill its obligations to protect citizens is generally an administrative disciplinary action of public servants who represent the state in performing its security obligations, and generally does not involve compensation for losses. L{managers in violation of the security obligations is the main form of liability for civil compensation, is a kind of economic responsibility form. Therefore, the state's constitutional protection obligations and the civil subject of the security obligations are two different obligations system, can not be confused.

3., the judicial status applicable to the security obligation in china.

China's judicial practice of the security obligations of the application of the situation, from the contract liability to tort liability evolution process. This article will discuss the case with two opposite.

A case of 1: purchased Shenzhen Bijia villa 3 building 303 room occupancy and.

One day the criminals from the back door into the penholder in the 3 room 104 building into the villa, observe the building situation, opportunistic crime. During the period, the property company had staff members to see the criminals entering and leaving, although they came forward to check, but they did not inform others. After a Ming in 3 buildings 104 houses were criminals killed, robbed to property 11000 yuan. 3, 104 rooms have been sold, the owners did not apply for home procedures, housing key custody by the property company. The criminal has been executed in this case. A family believes that the Property Management Company Beacon Hill village there is a serious dereliction of duty, violation of the obligations stipulated in the realty service contract, can not shirk responsibility for a murder, then taken to court for compensation for property companies liability for breach of a total of more than 68 yuan. The court of first instance, the property company lax management of the District, so criminals do machine lurking in the area of crime, in violation of the property company and the owners of residential property contract, shall bear the liability for breach of contract. Then sentenced the property company compensation for the families of the deceased, 100 thousand yuan compensation. The second instance in Shenzhen City Intermediate People's court held that the protection and custody of all owners and non owners Bijia villa use personal and property protection obligation is not the company's property collateral obligation, property companies should not bear the liability for breach of contract obligation does not exist. Therefore, the intermediate people's Court of Shenzhen decided to cancel the judgment of the first instance of the case and dismissed the request of the deceased's family members.

Case 2: Chen (male) and wie (female) check in the same room in Beijing Wan Cheng never hotel. The hotel found that two people did not register for marriage procedures, but because of the relationship between the two lovers, did not report to the public security organs. One day at 1 pm, two people because of a trivial dispute, Chen Wei strangled in the hotel, guest bathrooms dismembered the corpse after fleeing the scene. After Chen committed intentional homicide, sentenced to death, compensation for the economic loss of Wei parents 13000 yuan, compensation for the death of Wei parents 277652 yuan, but the debtor has no property to carry out. The parents in Beijing million never failing to hotel within a reasonable scope of the security obligations on the grounds, the prosecution requested the hotel undertake the responsibility of compensation, 290652 yuan compensation by criminal compensation. Beijing Xuanwu District City People's court held that Beijing never million hotels as hotel manager, the guests have security obligations. The hotel has not taken corresponding management measures according to the relevant laws and regulations, and subjective negligence has led to the result of the victim's murder. The act obviously violates the duty of security guarantee, and shall undertake the supplementary compensation liability within the scope of which it can prevent or stop the damage. The court according to the provisions of the "civil law" and "interpretation" discretionary judgment Beijing million hotel 60000 yuan compensation for the victim's parents never.

Obviously, although the two cases are different, they all involve the safety of the premises. In case 1, the property company did not take effective safety precautions, the criminals were killed to victims and cause consequences. Case 2, the hotel managers did not take appropriate management measures in accordance with relevant regulations to prevent the occurrence of criminal acts, there is a subjective fault. The two cases involve violations of the duty of safety protection by the site manager. However, the two cases of the same nature are completely reversed on the basis of the judgment and the final decision. The reason is that the difference in the time between the cases leads to the difference between the application of the law and the result of the decision. The 1 case occurred in the "explanation" issued before, China is still not on the safety and security obligations, the parties can only to liability for breach of contract as the basis of claim to the court, and the court also can only focus on the property contract of property companies if there is breach of credit as the basis of judgment. After the 2 case occurred in the "explanation" issued, the parties can directly to the hotel in violation of security obligations for tort liability claim basis that the hotel, the court is not binding on the accommodation contract between the parties and the presence of the breach to demonstrate directly in hotel management oversight, whether there is a violation of the analysis the guests of personal property security obligations on the level of the hotel due to illegally against guest security obligation should undertake the responsibility of compensation of the conclusion. The above two cases. The results show that the "interpretation" of the establishment of the safety guarantee obligation in perfecting the type of infringement, protect the legitimate interests of the victim has played an important role. It is the first time in our country law (judicial interpretation applicable in judicial practice is basically equivalent to the law) recognized the site management of the safety and security obligations, is of great significance to protect the legitimate rights and interests of victims, to build a harmonious society.

4. brief comments on the sixth articles of interpretation.

The "interpretation" of article sixth: "in accommodation, catering, entertainment and other business activities or other social activities of natural persons, legal persons and other organizations, entirely within the limits of reasonable security obligations in others suffered personal injury, the right to compensation request it to bear the corresponding liability for compensation, the people's court shall support. Where the result of the damage is caused by the infringement of the third party, the third party who commits the infringement shall bear the liability for compensation. Where the security obligor is at fault, he shall undertake the supplementary compensation liability within the scope of which he can prevent or stop the damage. After the security obligor assumes the responsibility, he may recover from the third party. Where the compensation holder sues the security obligor, he shall be listed as the co defendant, except that the third party cannot be determined by the third party." The progressive significance of this article: the interpretation itself is a very important judicial document. It is of great significance in the protection of human rights in our civil law, especially in the construction of tort law. The progress of this regulation is mainly manifested as follows: first, it embodies the humanistic concern of civil law. The protection of human rights, the relief of the people's life, health and physical rights damage, make up for the reality of life, because the perpetrator can not verify the regret. Two, it supplements the blank of the tort law in tort law. The establishment of tort liability for breach of security obligations, to a certain extent, complements the shortcomings of the general principles of civil law on specific types of infringement. The deficiency lies in, first, the scope of application of the security obligations. How large is the scope of the application of tort liability for breach of security obligations, and whether all civil subjects engaged in business activities and social activities have this obligation? That is, whether the security obligation has universal applicability, the explanation is not clear. Second, the identification of fault. Tort liability is based on the principle of fault liability, but how to judge the fault? Is the manager's breach of security obligations adequate or is there a need to supplement the industry codes and practices? Third, the burden of proof. Is it in accordance with the principle of fault or the presumption of fault that the plaintiff acts in accordance with the general tort act? As an interpretation of the law, judicial interpretation itself should be more operational and applicable. Fourthly, the judgment of the scope of reasonable limits. Judicial interpretation should be a certain explanation, otherwise there will be a judicial interpretation of the interpretation of the cycle. Fifth, on the "other social activities" is incorporated into the problem. The interpretation stipulates that security obligations include not only business activities, but also social activities. I agree with the relevant scholars "on another type of liability for social activities resulted in damage to personal property actually belongs to tort (the responsibility of the organizers), should not be prescribed in the safety guarantee obligation in terms of argument.

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