In recent years, public **** places and other people engaged in business activities and other social activities in violation of the obligation of safety and security caused by consumers and other people's personal and property damage disputes are increasing. I am here to organize the public **** place safety and security obligations, for your reference, I hope you have gained in the process of reading!
Public **** place safety and security obligations1One, safety and security obligations overview
(a) Definition
Safety and security obligations mainly refers to the natural person, legal person, other organizations engaged in accommodation, catering, entertainment and other business activities, or other mass activities, should be exhausted within reasonable limits to make others free from damage to persons and property obligations. Liability arising from the violation of the duty of safety and security is the duty of omission.
(2) China's provisions of the obligation of safety and security of the relevant legal norms:
Tort Liability Law, Article 37 provides: hotels, shopping malls, banks, stations, entertainment venues, and other public **** place of management, or the organizer of mass activities, did not do their duty of safety and security, resulting in other people's damages, shall bear responsibility for the infringement of rights.
Because of the third person's behavior caused damage to others, the third person to bear the tort liability; managers or organizers have not exhausted the obligation of safety and security, bear the corresponding supplementary responsibility.
"Personal Injury Compensation Interpretation" Article 6 provides: engaged in lodging, catering, entertainment and other business activities or other social activities of natural persons, legal persons, other organizations, failed to do a reasonable job within the scope of the obligation to ensure the safety of others suffered personal injury, the right to compensation for the person requesting that it bear the corresponding liability, the people's court shall support.
Third-party infringement caused by the results of the damage occurred, the third party who committed the infringement to bear the liability. Safety obligation is at fault, it should be in its ability to prevent or stop the damage within the scope of the corresponding supplementary liability. The safety and security obligor may recover compensation from the third party after assuming responsibility. The right to compensation sued the safety and security obligations of the person, the third party shall be *** with the defendant, but the third party can not be determined, except.
(3) set the duty of safety and security of the jurisprudence is based on:
First, the requirements of the theory of risk control. People engaged in the above social activities, the most likely to understand the actual situation of the entire premises, foresee the possible dangers and damages, and the most likely to take the necessary measures to prevent the occurrence of damage or mitigate the extent of damage. Therefore, it is logical that he should assume an obligation of safety and security to engage in the social activity.
Secondly, the requirement of consistency between benefits and risks. Engaged in the above business activities or the organization of other mass activities, generally for the purpose of profit from the social activities of the person, it is reasonable to impose the corresponding obligation of safety and security.
Third, the requirements of economic analysis and comparative conclusions. Analyzing and comparing from the perspective of socio-economics, the cost of avoiding and mitigating the occurrence of damage is the lowest for the safety and security obligor, and it should bear the necessary and appropriate safety and security obligations.
Public **** place safety obligation2Two, the nature of the safety obligation
China's judicial practice on the nature of the safety obligation, tend to identify it as a tort liability law level of statutory obligations. That is to say, the operator in its service place of consumers and other personal and property safety obligation is a legal obligation. From the practice of China's legislation, laws, administrative regulations, a large number of provisions of various circumstances of the operator to assume the obligation of safety and security, but the contract law has not made clear provisions. Since the operator of the business premises of the safety and security obligations is a legal obligation, when it violates the obligation of consumer personal and property damage, generally should bear the tort liability. In the third party's direct harm caused by the victim's damage and the operator is at fault, the operator should bear the supplementary liability.
Violation of the obligation to protect the safety of others caused damage, the principle of fault shall apply. In the victim request for compensation for damages, should be based on the fact that the damage suffered, the compensation obligation is in line with the general value judgment of the society agreed to the obligation of safety and security. The safety obligation should be on the corresponding safety obligation to defend.
Three, the main content of the obligation of safety and security
The main content of the obligation of safety and security includes two aspects:
First, the ? The first one is that the first thing is to make sure that the first thing is the right thing to do. s aspect of the safety and security obligations, mainly embodied in the custody, maintenance and equipment obligations. That is to say, the safety and security obligations of the person who has the obligation to guarantee the safety of the buildings, means of transportation, supporting facilities, equipment and other security of the premises under its control.
Secondly, ? People? The aspect of the safety and security obligations, this obligation is reflected in the appropriate personnel should be equipped to participate in social activities for others to provide protection against the outside world and third-party infringement. Specifically, including warning, instructions, notification and protection obligations. For example, those who operate hotels and restaurants should pay attention to prevent the occurrence of dangers, such as removing grease stains on the stairs, maintaining the safety of the elevator, illuminating the passageway to the parking lot, especially in the event of a fire, earthquake or other accidents should be notified to assist consumers to evacuate.
Four, the third party involved in the infringement of the situation
In the case of the third party involved in the infringement of the situation, the Tort Liability Law and Personal Injury Compensation explained the provisions of the two levels: First, if the victim's damage is caused by the third party to carry out the act of inflicting harm, and the duty of safety and security of the person who has fulfilled the obligations of due diligence, the third party is a tortfeasor, the victim shall bear the responsibility for the infringement of tort; Secondly, due to the infringement of the victim of the act of inflicting harm. Secondly, due to third-party infringement caused by the results of the damage occurred, the safety and security obligations of the fault, it should be able to prevent or stop the damage within the scope of the corresponding supplementary liability.
The supplementary liability for security obligations, should be understood from the following two aspects, that is, the direct implementation of the third party can be determined, the victim of tort liability; the victim can not be determined or not capable of assuming liability, security obligations in the violation of its ability to prevent or stop the infringement of the scope of the supplementary liability.
Safety and security obligations of the main body is those engaged in social activities of the owner of a particular place, the operator and other people into the place has a social security obligations of the people, their **** the same characteristics of the place of de facto control, this control is not necessary to have a trading relationship, such as the organizers of a number of mass events, the activities do not have an economic interest in the event, but it should still assume certain obligations of safety and security.
There is often a close relationship between the person protected by the obligation of security and the obligor. The so-called closer relationship includes: first, the contracting relationship, that is, between the obligor and the protected person has not yet entered into a contract, but the two are in the process of contracting and negotiation. For example, a customer is shopping for goods in a store or preparing to enter a restaurant. Secondly, a contractual legal relationship, i.e., a contract of some kind has been concluded between the obligor and the protected person. For example, a passenger on a bus **** has formed a transportation contract with the bus **** company, a customer dining in a restaurant has formed a service contract with the restaurant, and so on. Thirdly, there was once a contractual relationship between the obligor and the protected person, but that contract has already been fulfilled. For example, the customer has finished eating at the restaurant but has not yet left the restaurant.
Public **** place security obligation 3
V. Security obligation judgment standard
Often to the actor whether to do the competent authorities required by the security protection standards, in the implementation of these standards and regulations, there is no negligence, error, in the event of damage to the disposal measures are appropriate, and so on. At the same time, the content of the duty of security also need to be determined according to the actual situation of each specific case.
Situation 1: a restaurant operator whether the violation of the duty of safety to make a judgment, first of all, need to consider whether the violation of the restaurant safety, food hygiene and safety, civil construction, fire and other aspects of the regulations, and secondly, we should also take into account the duty of care of a rational operator should be exhausted.
Situation two: a person in the hotel accommodation, will drive the car parked in the hotel's parking lot, and then found that the vehicle was stolen, it sued the hotel to assume liability. From the hotel's point of view, if the security obligations, such as parking lot management negligence, carelessness, in and out of the vehicle without careful verification, resulting in the theft of the passenger's vehicle, the hotel should bear the corresponding supplementary liability.
Scenario 3: robbers in the public **** car robbery, the driver and crew did not speak out to stop or take positive action such as alarm. After the car stopped, the robbers took off. Driver and crew obviously did not do their duty of security, in the event of damage did not take appropriate measures to deal with, in violation of the obligation to protect the safety of passenger transportation, passenger transport companies should bear the corresponding supplementary liability.
Scenario 4: a customer deposits in the bank counter, was killed by armed robbers bank robbers, and the bank has taken the industry's prevailing precautions, its in the contingency is not inappropriate, then the bank should not be liable for compensation.
Sixth, the actual invitation, party, posting the convening of tourism in the case of the duty of security disputes
Practice will encounter such disputes, for example, a convening of a number of close friends party, during the period of some alcohol, B drunk to go home, A as the organizer and not drunk, B accidentally fell on the way home, now B sued A to compensate for its losses. Another example, A called B and other travel, encountered flash floods on the way, B was killed, B's family sued the convenor of the A to assume responsibility for compensation. The above disputes based on the principle of good faith and public order and morality principle, as a guest, party organizers do have a certain obligation to protect the safety of the invitees. However, due to participate in the above activities are generally full capacity for civil behavior, activity organizer is only to carry out the organization of behavior, and to participate in the activities of the consequences of the damage to the general are not intentional or gross negligence, in the judicial practice should not be the organizer of the obligation to protect the safety of the requirements of the organizer is too high, the organizer can only do the appropriate security obligations. In order to adjust more similar organization activities, better regulate the behavior and responsibility of activity organizers. Therefore, the general principle of such disputes is: party, outing and other civil spontaneous activities of the organizers, to participate in the activities of the people should have a certain security obligations, the organizers due to intentional or gross negligence did not fulfill the obligation of security and safety and cause damage to the participants in the activities, should bear the corresponding responsibility.