Regarding Article 1198 of the Civil Code,the application of safeguard duty has not been fully clarified in four aspects:subject scope,content standards,causal relationships,and supplementary responsibilities.Based on a local perspective,an interpretive framework for safeguard duty should be formed by combining the accumulated judicial wisdom in judicial practice.Specifically,if we simply stand on the position of Article 1198,we will conclude that the range of the subject of safeguard duty is narrow.The correct path is to extend the scope of the subject of safeguard duty in the interaction between Article 1198 and Article 1165(1).The content standards of safeguard duty form legal loopholes due to the abstract nature of the concept.By relying on local judicial resources,five normative elements can be extracted,including the severity of social danger itself,the ability to control social danger,the profitability of social activities,the necessity of special protection for obligated parties,and the economic cost of security measures.These elements can provide judges with guiding views on demonstrating security obligations.In the causal determination of unfulfilled safeguard duty,for regulatory purposes,the evaluation criteria should be relaxed.In principle,as long as the possibility of reducing harm caused by security measures cannot be ruled out,the existence of causal relationships should be affirmed.As for the application conditions of supplementary liability,there is a clear contradiction between the theoretical community and judicial practice in terms of causal force and the subjective behavior of third parties.From the perspective of judicial practice,failure to fulfill safeguard duty only allows security obligors to enjoy the priority benefits of responsibility when indirectly participating in harm as a secondary cause.Otherwise,proportionate liability should be adopted.
safeguard dutycausal relationshippurpose of regulationsupplementary responsibilitiesindirect causes
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