论第三人侵权时经营者的安全保障义务——兼论《侵权责任法》中责任承担方式缺陷的克服

On the Security Guarantee Obligation of the Operator in Relation to the Third Party's Tort——Also on Overcoming the Deficiencies in the Legal Responsibilities Prescribed in Tort Liability Law

文章立足于我国安全保障义务的立法现状,从其理论来源、法理本质等方面着手,研究和归纳了当第三人侵权时经营者违反安全保障义务的构成要件与责任承担方式。并采用法理分析和立法比较的方法,对《侵权责任法》第37条第二款规定的经营者之补充赔偿责任予以探讨,提出了第三人侵权并不绝对中断安全保障义务人与被害人损害间的因果关系,损害赔偿应按份承担,安全保障义务人不得事后再对第三人进行追偿等观点。

Based on the legislative status of Security Guarantee Obligation of China at the present stage. From the theoretical origin,the legal nature and other aspects,this paper makes a research and summarizes the constitutive elements and legal responsibilities of the operators for violating the security guarantee obligation in the case of the third party＇s tort. Adopting the method of legal analysis and legislation comparison. The writer has explored the supplemental responsibility of operator, which is stipulated in 37（2） of the Tort Liability Law of People＇s Republic of China. It is also proposed in the paper that the causal relationship between the damage party and operator should not been absolutely interrupted. The operator and the third person should take their own share of responsibilities and the operator should not have the right to ask the third person to repay.