论经营者安全保障义务的认定-法律学专业论文.docxVIP

1 1 2 2 Abstract The research object of this paper is the identification of security obligations of the operators. The paper comprises six sections except the introduction. The first section is a brief introduction to four cases selected. The four cases selected are all cases of the identification of security obligations of the operators in the judicial practice. This section by analyzing and summarizing the judgment and justification of identification determines the focus of the dispute, thus the problems this paper intends to discuss are introduced. The second section is about the general theory of security obligations. Firstly, define the concept of security obligations in this paper. Secondly, briefly review three kinds of theories about the nature of security obligations and elaborates the author?s view. Lastly, brief introduce to the main content of the security obligations including the hardware and the software. To use for reference, the third section is about the identification of security obligations of the operators on the extraterritorial. That is Germany?s “Verkhtehrspflicen”, France?s “obligation de sécurité”, Japan?s “security attention obligation”, Taiwan?s “transaction security obligation” and “duty of care” on the common law. The forth section summarizes three main ideas of Chinese scholars to the identification of security obligations of the operators. The first one is the judgment standards of identification including legal standards, industry standards, contract standards, reasonable standards, general standards and special standards; the second one is the consideration factors of identification including profit or not, the sources of the risk and damage, the cost of prevention and control the risk or harm, the predictability of the danger, the reasonable reliance and the feelings of the common people; the third one is the categorizations of identification. The Author comments on three ideas of Chinese scholars to the identification of security