经营者风险预防义务的证成与边界以AED配置义务为重点

Justification and Boundaries of Business Owners'Duty of Risk Prevention Focusing on the AED-Equipment Duty

经营者对特定风险的预防义务,应受经济分析和分配正义的双重检视。前者着眼于采取预防措施的边际效益、横向成本对比,后者落脚于风险创设、利益获取、风险控制、合理信赖等要素的判定。以心源性猝死风险为例,自动体外除颤器(AED)是抢救心脏骤停患者的利器,置于人流量大的公共场所将极大提升救治率,收益高于成本、较个人预防亦有成本优势。客流量高的收费运动场所、远途公交工具创设风险并从中获益,大规模学校和养老机构被服务对象高度依赖,经营者应负AED配置义务。现行管制规范大多对此项义务保持沉默,但已具时滞性,不应盲目采纳合规抗辩,封闭私法义务。独立生长的私法义务可充当管制立法的低成本试点,并促成风险预防成本在私人和财政间的互补分摊。地铁站、机场、大型商超未创设风险,义务认定须谦抑,宜由财政负担AED投放成本。这一个案揭示了经营者风险预防义务的机理,也推动着风险规制的对象延展与全景式公私法协同方案的设计。

An operator's obligation to prevent specific risks should be subject to dual examinations of economic analysis and distributive justice.The former focuses on the marginal benefits and horizontal cost comparison of preventive measures,while the latter focuses on the determination of risk creation,benefit acquisition,risk control,reasonable trust and other factors.Taking the risk of sudden cardiac death as an example,an automated external defibrillator(AED)is a powerful tool for rescuing cardiac arrest patients.Placing it in a public place with a large flow of people will greatly increase the treatment rate.The benefits are higher than the cost and are more effective than personal prevention.There is a cost advantage.Charged sports venues and long-distance public transportation with high passenger flow create risks and benefit from them.Large-scale schools and elderly care institutions are highly dependent upon by the service recipients,and operators should bear the obligation to configure AEDs.Most of the current regulatory regulations are silent on this obligation,but it has a time lag.Regulatory compliance defenses should not be blindly adopted and private law obligations closed.Independently growing private law obligations can serve as low-cost pilots for regulatory legislation and enable complementary private and fiscal sharing of risk prevention costs.Subway stations,airports,and large supermarkets shall hardly be obligated because they have not created risks,so the finance should bear the cost of AED deployment.This case study reveals the functioning mechanism of risk prevention obligations of operators,as well as promotes the extension of the objects of risk regulation and the design of a panoramic public-privatelaw collaboration plan.