论非营利性公共场所安全保障义务之合理限度——基于安全保障义务之泛化引发的思考

On the Reasonable Limit of Security Obligation for Non-profit Public Place: a Reflection over its Generalization

《民法典》第1198条第1款将"公共场所"分解为"经营场所+公共场所",将经营场所之外的非营利性场所囊括其中,存在未区分二者的义务标准和限度的问题。非营利性公共场所与营利性公共场所在责任基础上具有异质性,因此其安全保障义务的标准与限度应较低。非营利性公共场所安保义务之作为来源可分为诚信原则和服务合同关系,它们在作为义务之标准上应区别对待:二者均需按照法定标准履行义务,无法定标准时仅需履行一般的警示、提醒注意、防护和事后防止损害扩大之义务即可,其中防护义务并非强制,应根据防护的现实可能性和成本加以考量,但来源于服务合同关系的安全保障义务应在服务场所内安排专门人员、设置安保设施。在责任承担上,非营利性公共场所之责任应限于合理的预见可能性,且采用先前类似犯罪行为理论作为推定标准。

In the first paragraph of Article 1198 in Civil Code,the "public place" is separated into "business place+ public place", including non-profit place other than business place, where their obligation standards and limits are not distinguished. Compared with the profit-making public place, the non-profit one is heterogeneous for the responsibility basis, so the standard and limit of its security obligation should be lower. The source of security obligation in the non-profit public place can be divided into the principle of faith and the relationship of service contract, which should be treated differently in the aspect of obligation standard. Both of them need to perform their obligations in accordance with statutory standards. When standards cannot be set, they only need to perform the duties of general warnings, reminders, protections and post-mortem obligations to prevent damage from expanding, among which protection obligations are not mandatory and should be considered based on the realistic possibility and cost of protection. However, as for the security obligation derived from the service contract relationship, specialized personnel should be arranged and security facilities be set up in the service place. In terms of liability, the liability of non-profit public place should be limited to reasonable foreseeable possibility, and the previous similar crime theory should be used as the presumption standard.