Article 1198
Operators or managers of hotels, shopping malls, banks, stations, airports, stadiums, entertainment venues, and other business venues or public places, or organizers of mass events, who fail to fulfill their security obligations and cause harm to others, shall bear tort liability.
Where a third party's conduct causes damage to others, the third party shall bear tort liability, and if the operator, manager or organizer fails to fulfill its security obligations, it shall bear corresponding supplementary liability. After the proprietor, manager or organizer bears supplementary liability, it may recover compensation from a third party.
1. The main purpose of this article
This article deals with the breach of security obligations.
II. Evolution of the Provisions
This article stipulates the safety and security obligations of the operators, managers or organizers of mass events in public places such as accommodation, catering and entertainment, banks, transportation, etc., as well as the responsibilities for violating the safety and security obligations. At the beginning of the 21st century, there are differences of opinion in judicial practice on the handling of cases in which the public suffers damage in places of business such as accommodation, catering, entertainment, or other places of social activities, especially when the public suffers harm from a third party in the above-mentioned places, and the direct infringer cannot be determined afterwards, or even though it has been determined, the direct perpetrator is unable to bear the liability for compensation, etc., how to determine the bearer and how to implement the liability for damages.
In order to unify the adjudication standards, the Supreme People's Court drew on the research results of the theoretical circles on the security guarantee obligation, summarized the practical experience of adjudication, and for the first time stipulated the safety and security obligations of business operators in the Interpretation on Personal Injury Compensation (Fa Shi [2003] No. 20). Article 6 of the Interpretation stipulates that: "Where a natural person, legal person or other organization engaged in business activities such as accommodation, catering, entertainment or other social activities fails to fulfill its obligation to ensure safety within a reasonable scope and causes personal injury to another person, the people's court shall support the request of the person entitled to compensation to bear the corresponding liability for compensation." Where the damage occurs as a result of the infringement by a third party, the third party who committed the infringement shall be liable for compensation. Where the security obligor is at fault, it shall bear the corresponding supplementary liability for compensation to the extent that it can prevent or stop the harm. After the security obligor bears responsibility, it may seek compensation from a third party. Where the person entitled to compensation sues the security obligor, the third party shall be a co-defendant, unless the third party cannot be determined. The original Tort Liability Law incorporates the provisions of the above-mentioned judicial interpretations and stipulates in Article 37 the tort liability for breach of the duty of security guarantees: "If the manager of a public place such as a hotel, shopping mall, bank, station, entertainment venue, or the organizer of a mass event, fails to fulfill the obligation of safety and security and causes damage to others, he shall bear tort liability." If a third party's conduct causes damage to others, the third party shall bear tort liability, and if the manager or organizer fails to fulfill the obligation to ensure safety, it shall bear the corresponding supplementary liability. Compared with the judicial interpretation and the original Tort Liability Law, the tort liability section of the Civil Code expands the application space of the security obligation in two aspects: first, the expression of the subject of the security obligation is adjusted from the original "manager of public places" to "the operator and manager of business premises and public places", and two typical public places such as airports and stadiums are added to the enumeration. The second is to add that the security obligor has the right to recover compensation from a third party who has committed a direct tort after assuming the corresponding supplementary liability.
3. Interpretation of Provisions
This article deals with tort liability for breach of security obligations.
Tort liability for breach of security obligations refers to the liability of operators, managers or organizers for compensation for damages caused to others by failing to fulfill their safety and security obligations in business premises, public places, or mass activity venues.
There are four forms of tort liability for breach of safety and security obligations: (1) failure to fulfill the obligation of safety protection of facilities and equipment, (2) failure to fulfill the obligation of safety protection in service management, (3) failure to fulfill the obligation of safety and security for children, and (4) failure to fulfill the obligation of safety and security for preventing and stopping infringements. The first three types are summarized in paragraph 1 of this article, and the form of liability is self-responsibility, while paragraph 2 provides for the fourth type of tort liability for breach of security obligations, and the form of liability is the corresponding supplementary liability.
The constituent elements of the three types of tort liability for breach of security obligations in the form of self-responsibility are:
(1) The places with security obligations are hotels, shopping malls, banks, stations, airports, stadiums, entertainment venues and other business places, public places or places for mass activities.
(2) The obligated entity with the obligation to ensure safety is the operator, manager or event organizer of these venues.
(3) The source of the safety and security obligations of operators, managers and organizers is Article 18 of the Law on the Protection of Consumer Rights and Interests, other legal provisions or agreements of the parties.
(4) Where the operator, manager, or organizer fails to fulfill the security obligations prescribed by law or agreement, causing damage to others, including consumers or event participants, there is a causal relationship between the failure to fulfill the safety guarantee obligations and the damage to others.
If the above requirements are met, the operator, manager or event organizer shall bear tort liability for the others who have been harmed. For example, a restaurant that has not completed construction is put into trial operation, causing damage to diners, and failing to fulfill its obligation to ensure the safety of facilities and equipment; a restaurant with greasy floors causing consumers to slip and fall and injure themselves, failing to fulfill its obligation to ensure safety for the sake of service management; and failing to fulfill its obligation to ensure the safety of children due to the wide gap between the guardrails of the stairs of a store, causing children to overtake and fall and injure themselves. The tort liability for these violations of the security obligations shall be borne by the operators, managers or organizers who violate the security obligations.
The constitutive elements of tort liability for failure to fulfill the obligation to ensure security for the prevention and suppression of infringements are:
(1) The place with the obligation of safety and security is a business place, a public place or a place for mass activities.
(2) The operators, managers or event organizers of these establishments have the obligation to prevent and stop infringements against consumers and participants.
(3) A third party commits an infringement that causes damage to the consumers and participants of these places.
(4) The failure of the operator, manager or event organizer to fulfill the safety guarantee obligation to prevent and stop the infringement is the cause of the damage.
The rules for bearing tort liability for failure to fulfill the obligation to ensure safety in preventing and stopping infringement are:
(1) The third party who commits the infringement is the person directly responsible and bears tort liability for the damage suffered by the victim.
(2) If the operator, manager or event organizer fails to fulfill the obligation to prevent and stop the infringement and enable the infringement to occur, it shall bear supplementary liability corresponding to the degree and causal force of its fault and the causal force of its own fault and the cause of the damage.
(3) After the operator, manager or event organizer bears supplementary liability, the third party may recover compensation from the third party because the third party is directly responsible for the infringement.
For example, if a guest is damaged by a third party's infringement and the hotel fails to fulfill its obligation to prevent and stop the infringement, it shall bear supplementary liability in accordance with such rules.
4. Cases
Zhao Mouhua v. Yeninge Hotel, a dispute over the right to life, the right to health and the right to body
Facts: When Zhao Mouhua went to the hotel to stay at the Yeningge Hotel, and walked through the hotel passage to the passage on the first floor of the building, because the elevator car in the passage had been dismantled and there was no protective device, Zhao Mouhua entered the vacant elevator shaft after drinking and fell to the bottom of the well and was injured. The court held that the defendant, as an enterprise providing accommodation services, should ensure the personal safety of consumers within a reasonable limit and avoid personal injury caused by defects in management and services. The incident passage is a relatively enclosed area that can be accessed through a security exit within the hotel. At the time of the incident, the elevator shaft in the area was vacant due to the removal of the car. The defendant Yeninge Hotel was aware of the above situation and had de facto control over the passage and elevator where the incident occurred, but failed to take safety precautions. There is a direct causal relationship between the potential safety hazards in the course of providing services and the damage caused by the plaintiff Zhao Mouhua, so Yeninge Hotel should bear civil liability for compensation. Plaintiff Zhao Mouhua, as a person with full capacity for civil conduct, should have performed a reasonable duty of care for his own conduct to ensure his own safety. After drinking, his normal judgment was affected, he neglected to observe the surrounding environment, and failed to fulfill his general duty of care, which was related to the occurrence of the accident to a certain extent, so the liability of the defendant Yeningge Hotel could be appropriately reduced according to the principle of negligence.
5. Analysis
The main content of the security obligor is that the obligor shall abide by the provisions or agreements of the law, and exercise due diligence to ensure that no damage is caused to others by his own actions or the objects and personnel under his or her management or control. Specifically, in this case, as an enterprise providing accommodation services, Yeningge Hotel is an "operator of the business premises", and has a duty of care to protect Zhao Mouhua from damage to his business premises, that is, it has the obligation to manage the premises where the incident occurred. If he fails to fulfill his security obligations within a reasonable range, causing Zhao Mouhua to suffer personal injury, he shall bear tort liability for violating his security obligations in accordance with law. In addition, as a victim, Zhao Mouhua failed to fulfill the general duty of care and was also at fault for the occurrence of the damage, so the liability of the security obligor should be appropriately reduced in accordance with the rule of offsetting of fault.