【作者】 张玉爽；

【导师】 冯彦君；

【作者基本信息】 吉林大学 ， 法律， 2008， 硕士

【摘要】 安全保障义务来源于司法实践,是为了更好地保障经营者和消费者的利益及交易安全的需要。对于如何确定安全保障义务的概念,我国司法界和学界也有不同的观点。笔者认为,既然安全保障义务是司法实践的产物,考虑到我国社会经济发展的现状,为了使法律能更好地解决社会现实中的损害赔偿问题,实现社会公平,合理分配风险和利益,对于我国安全保障义务的概念应采用宽泛的界定。同时明确了经营者安全保障义务的判断标准及其内容。通过对安全保障义务产生的法理依据的分析和对其他国家、地区中安全保障义务规定异同的比较,来完善我国法律对安全保障义务的规定。本文最后也对违反安全保障义务的法律性质、归责原则、责任形式及免责事由进行了界定。更多还原

【Abstract】 Safeguard obligation is a new topic in the domain of tort law and contract law, which is attributed to the interaction and penetration of the tort law and contract law. This article compares the legislations and cases of common law system and civil law system and analyzes status of our country. In addition, this article brings forward some proposals on improving the legislation of safeguard obligation in China to resolve the existing problems in judicial practice.Chapter one focuses on a generalization of China’s safeguard obligation. Section one analyzes different concepts in theoretical circles and judicial practice, e.g. judicial interpretation of Supreme Court, the regulation of tort law and opinions put forward by Prof. Xinbao Zhang, Lixin Yang and Liming Wang. In the end the author draws a conclusion that safeguard obligation is the product of judicial practice, is an active obligation assumed by legal subject in modern society. In order to make law suitable to the need of social development and solve damages on special occasions, we should define it in a wide sphere. Only by doing so, can it protect legitimate interest of the public and promote the development of harmonious society. Section two analyzes three standards of how to judge the breach of safeguard obligation. Section three analyzes the contents of acting places and process. The former includes qualified equipment and staff, the latter includes the elimination of dangerous factors, noticing and assisting them.Chapter two explores the history and foundations. Section one states safeguard obligation from the perspectives of comparative law. It tells us the similar regulations in German, France, Japan, and Taibei and the situation and development in different law systems. In addition, it shows that the theory of safeguard obligation is based on similar theory of Germany and is put forward after considering the development and living standards of our country. As we know, learning the differences is good for our mastering. Later, it summarizes the legislations about safeguard obligation of our country in four aspects. Section two analyzes its foundations why proprietors should assume relevant obligations for consumers in six aspects.Chapter three makes analysis of legal nature and liability on safeguard obligation. Section one discusses its legal nature and analyzes research in German, France, Japan from the perspectives of comparative law. In the end the author combines judicial practice and draws a conclusion that its legal nature is the breach of legal obligation in general and the breach of stipulative obligation on special occasions. Section two analyzes its principles of imputation and the method how to define its fault, i.e. on one hand, the proprietors should assume the principle of legal presumption of fault when they break tortious obligation, on the other hand, they should assume the principle of liability without fault. Section three discusses its type of liability, which includes parties fault liability, liability for breach of contract, tortious liability, direct liability and indirect liability. Section four analyzes its impunity reasons and gives relevant cases.The last part gives relative objective evaluations about safeguard obligation. With the economic development of society, when our living standards are better and better, our life encounters more and more danger. Consequently, the born of safeguard obligation is just suitable to the need of society. The foundation of this system promotes quality of product and service. However, as a new system, safeguard obligation hasn’t exerted all its influence, there are still large areas to be researched. The author studies existing research and discusses relevant important problems of this system to resolve them in reality and promote development of service industry.更多还原