Before Jiang Ge’s mother Jiang Qiulian sued bet365 horse racing odds (formerly known as Liu Xin)，The dispute between the two parties has been fermenting on the Internet for a long time。The court of first instance where the defendant in this case is located - Chengyang District People's Court of Qingdao City, Shandong Province has just announced its verdict，All walks of life are talking about it，The legal community is also paying close attention to this case，There is a dispute over the judgment document。The morning of February 16th，The second instance of the case was held in Qingdao Intermediate Court，After nearly 4 hours of review，The court announces an optional sentencing date。

The legal facts arising from the dispute between the two parties in this case occurred before the implementation of the Civil Code，Based on Article 1 of the "Several Provisions of the Supreme People's Court on the Time Effectiveness of the Application of the Civil Code of the People's Republic of China" (Fa Interpretation [2020] No. 15)，Courts should apply the separate civil laws before the promulgation of the Civil Code。In terms of the basis of the right to claim，The plaintiff can choose: first，Special rules for courageous acts of justice，That is, Article 23 of the Tort Liability Law (derived from Article 109 of the General Principles of Civil Law) and the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases (Fa Interpretation [2003] No. 20) Article 15。Based on this，When the direct infringer Chen Shifeng is unable to bear the liability for compensation，Compensation right holder Jiang Qiulian can request beneficiary bet365 horse racing odds to provide appropriate compensation within the scope of the benefit。Article 183 of the Civil Code is more detailed，Professor Yang Lixin calls it China’s “Gratitude Method”。Second，Tort Liability Rules，In this case，Plaintiff Jiang Qiulian chose this cause of action。The second cause of action is much more difficult to apply than the first cause of action。

　　Does bet365 horse racing odds bear security obligations to Jiang Ge

After rights are damaged，In principle, “the damage is done” (Homs)，Only when the behavior of others meets the requirements for tort liability，Only the victim can ask others to bear tort liability。In this case，Jiang Ge’s murder was a direct result of Chen Shifeng’s infringement；If Chen Shifeng had not committed any infringement，It is impossible for Jiang Ge to be killed。bet365 horse racing odds did not directly infringe Jiang Ge’s right to life，So when confirming whether bet365 horse racing odds should bear tort liability for Jiang Ge’s death，First of all, it must be determined whether bet365 horse racing odds bears behavioral obligations to Jiang Ge。The first-instance judgment generally refers to behavioral obligations as “duties of care and safety protection obligations”，Precisely，The behavioral obligations of tort liability law include the following two types。

First, duty of care。This is the obligation of "all to all"，The specific content is，Any member of society assumes respect、Obligation not to infringe upon the legitimate civil rights and interests of others。This obligation is the bottom line requirement for maintaining the order of rights，It is also in line with the public’s basic expectation that others will not infringe upon their legitimate rights and interests in social life。Therefore，bet365 horse racing odds is the same as other members of society，Both assume a duty of care towards Jiang Ge not to infringe on his right to life。

The second is safety guarantee obligations。This obligation requires the actor to take positive actions，Protect the rights of others from being infringed，Including protection from third party criminal acts。The general rule in the field of tort liability law is，Civil entities do not bear security obligations to each other。The reason is: first，Defend the freedom of movement of civil subjects，If a civil subject assumes the obligation to protect other members，It will undoubtedly constitute a major restriction on their freedom；Secondly，Civil subjects assuming this obligation will overstep state power，And make state agencies evade their legal responsibilities to citizens within the framework bet365 horse racing odds constitution；Finally，Civil subjects are usually unable to bear this obligation，Even if I can barely bear it，You will also pay a high price。Our country’s current law also upholds this principle，Article 1005 bet365 horse racing odds Civil Code also stipulates that only “organizations or individuals with legal obligations to rescue” have the obligation to promptly rescue natural persons when their personality rights are infringed。

But there are exceptions to bet365 horse racing odds principle，bet365 horse racing odds mainly occurs in two situations: First, there is a special relationship between civil subjects，Like close relatives、Parties to the contract；The second is that the perpetrator has caused some objective risk。

In this case，Should bet365 horse racing odds bear tort liability for Jiang Ge’s death，The most fundamental question is whether she assumes security obligations for Jiang Ge，That is to prevent Chen Shifeng from committing infringement or preventing the scope of damage from expanding？The judgment of the court of first instance affirmed it for two reasons: First, bet365 horse racing odds introduced and maintained the risk of Jiang Ge being violated by Chen Shifeng，Therefore, reasonable measures should be taken as much as possible to avoid the danger from materializing，Cause actual damage consequences。Second, Jiang Ge rescued bet365 horse racing odds，Includes "provided him with a safe place to live"，And implemented persuasion、Rescue and protection behavior”，Therefore，Jiang Ge “has reasonable trust” in bet365 horse racing odds，bet365 horse racing odds "has a higher duty of care to inform Jiang Ge honestly and in good faith"。In legal terms，bet365 horse racing odds turned to Jiang Geshi for help due to a dispute with Chen Shifeng，That is, creating and maintaining the continued risk of Jiang Ge being violated，In modern tort law, the creator and maintainer of danger should generally bear the responsibility to avoid the actualization of danger，It can be completely determined that bet365 horse racing odds bears legal security obligations to Jiang Ge。In addition，Based on the special relationship between bet365 horse racing odds and Jiang Ge surrounding the rescue and bet365 horse racing odds’s previous behavior of asking for help，The same conclusion can also be drawn。The first-instance judgment starts from "Judicial decisions should protect the bottom line of social morality，Promote virtue and righteousness，Starting from the goal of guiding the whole society to advocate virtue and do good，On the one hand, it is believed that Jiang Ge embodies the traditional virtue of helping people in need，Deserves praise，On the other hand, bet365 horse racing odds is not only ungrateful，Also committed behavior that was “against common sense”。The reason why the judgment resorted to moral argument is that bet365 horse racing odds has a security obligation to Jiang Ge，The purpose should be in the judicial atmosphere where this case has attracted great attention from the society，Through judicial rhetoric on the core reasons for the judgment，To obtain and strengthen the legitimacy of the judgment，But is it legally necessary，Worth studying。

　　Whether bet365 horse racing odds violated her behavioral obligations

Whether bet365 horse racing odds violated her behavioral obligations，is another key element in determining whether tort liability is established in this case，The elements include whether the behavior is illegal and whether the perpetrator is at fault。In my country’s theory and practice，The relationship between illegality and fault is relatively confusing: on the one hand，Illegality is often absorbed by fault；On the other hand，Fault is often determined by illegal behavior or illegal results。The following is a comprehensive analysis of whether bet365 horse racing odds violated his behavioral obligations。

First，Whether bet365 horse racing odds violated her duty of care？The duty of care is mainly reflected in the duty of omission，That is, the perpetrator shall not perform positive actions to infringe the rights of others。After the dispute between bet365 horse racing odds and Chen Shifeng，Turn to Jiang Ge for help，Although judging from the subsequent development of events，His actions put Jiang Ge in danger，But asking friends for help is normal social behavior，Not illegal，Therefore bet365 horse racing odds did not violate the general duty of care owed to Jiang Ge。

Second，Did bet365 horse racing odds violate her security obligations？The typical violation of security obligations is to do something that should be done。Determine whether bet365 horse racing odds violated her security obligations，The following four levels of issues need to be considered。

First, can bet365 horse racing odds use the excuse of emergency avoidance，Prevent the illegality of his inaction？The core requirement for emergency avoidance is that there is a significant difference in the importance of the legal interests of different entities。When bet365 horse racing odds and Jiang Ge also faced the risk of their personality rights being infringed，The legal interests of the two are exactly the same，So as Professor Jin Keke pointed out，bet365 horse racing odds’s inaction does not meet the requirements for emergency evacuation。

The second question is whether bet365 horse racing odds could foresee the risk of Chen Shifeng infringing Jiang Ge’s personality rights？Is it foreseeable to adopt ordinary people’s standards，Based on the general life experience of social members，At the same time, it is determined based on the specific situation of the perpetrator。The judgment of first instance holds that，bet365 horse racing odds based on her former love relationship with Chen Shifeng，You should understand Chen Shifeng’s character and behavior，And Chen Shifeng continues to follow up、Entanglement、Intimidating behavior，bet365 horse racing odds also expressed her fear to Jiang Ge，And asked Jiang Ge to wait for him to return to the apartment together，Indicates that bet365 horse racing odds has realized that her own safety is seriously threatened。Although the judgment did not indicate whether bet365 horse racing odds could have foreseen the extent of this danger，Especially the danger to Jiang Ge。From the facts of this case，Chen Shifeng and bet365 horse racing odds、After Jiang Ge met in the apartment，bet365 horse racing odds seems to have foreseen that Chen Shifeng might infringe Jiang Ge’s life。However, after careful study, the opposite view can also be obtained，After all, Chen Shifeng’s target of revenge is not Jiang Ge，But bet365 horse racing odds。The judgment found that bet365 horse racing odds did not fully fulfill her obligations of kind reminder and honest disclosure，And stop Jiang Ge from calling the police，And asked Jiang Ge to accompany him back to the apartment late at night，Obvious fault。But the premise of this determination is that bet365 horse racing odds realizes that Chen Shifeng has potential dangers that must be intervened and stopped by the police。If this danger exists，Even if Jiang Ge agrees not to call the police，It can also be determined that bet365 horse racing odds violated her security obligations。

The third is whether bet365 horse racing odds has the ability to prevent Chen Shifeng from committing harmful acts or the ability to prevent the damage from expanding？Any civil subject with security obligations，When a third party commits a criminal act, especially a violent crime that injures a person，Its ability to prevent criminal behavior or prevent the expansion of damage is limited。“The law does not force people to make things difficult”，So any security obligation has its boundaries，Violating security obligations cannot result in violation of the concept，Only actions that violate the view，That is, as long as the perpetrator has done his best、Necessary security obligations，Even if it fails to prevent the occurrence or expansion of the damage，The perpetrator did not violate security obligations。At the time of the crime，bet365 horse racing odds faces Chen Shifeng who is holding a murder weapon，It is difficult to say that it has the ability to prevent its murder，If bet365 horse racing odds calls the police immediately after entering the door、Seek prompt medical assistance after damage occurs，It seems difficult to determine that it failed to fulfill its safety guarantee obligations。Some case determinations in the United States，Operators who bear security obligations，When a third party commits a criminal act that harms the customer，As long as you call the police in time，It means that the security obligations have been reasonably fulfilled。

The fourth question is whether bet365 horse racing odds should sacrifice her personality rights to protect Jiang Ge？Morally，The answer is yes。However, legally，Security obligors do not need to sacrifice themselves to fulfill their obligation to protect others，Even if the danger is caused by the obligor。If the security obligor is protected from harm，Should bear the obligation to compensate the victim。The judgment of first instance holds that，In the urgent situation of Chen Shifeng committing illegal infringement，bet365 horse racing odds entered the room first and locked the door，As a result, Jiang Ge was unable to enter and was killed，Therefore bet365 horse racing odds failed to fulfill her security obligations，And bet365 horse racing odds violated her obligation to disclose danger、Prevent the alarm and Jiang Ge from entering，"Major fault"，At least the evidence of “gross fault” is not enough，Need reinforcement，If there is a possibility of letting Jiang Ge in、The content of Chen Shifeng’s threat to bet365 horse racing odds and whether Chen Shifeng was pursuing bet365 horse racing odds at the time of the incident、The intensity of the dispute between Chen Shifeng and Jiang Ge, etc.。There is no obstacle to proving bet365 horse racing odds’s security obligation to Jiang Ge from a moral perspective，Because this is completely consistent with the conclusion of the legal analysis；However, bet365 horse racing odds was deemed to have violated her security obligations，It is possible to replace legal judgment with moral emotions。In this regard，The verdict should respond to a voice on the Internet: If bet365 horse racing odds did not have words and deeds that irritated Jiang Ge’s family afterward，But he was full of guilt and comforted his family，Can there be a lawsuit between the two parties？

　　How should bet365 horse racing odds bear infringement liability

The first-instance judgment determined that bet365 horse racing odds should bear the liability for infringement，Then the relationship between bet365 horse racing odds and Chen Shifeng will inevitably constitute the debt of most people。But it did not clarify the nature of bet365 horse racing odds’s debt。There are two views on this in academic circles: one is the application of Article 12 of the Tort Liability Law，bet365 horse racing odds and Chen Shifeng respectively bear tort liability in proportion to Jiang Qiulian according to their faults；The second is to apply by analogy Article 37, paragraph 2, of the Tort Liability Law regarding the operator’s violation of security obligations when a third party infringes the law，bet365 horse racing odds assumes additional responsibilities accordingly。The reason for the former is，The perpetrators separately committed infringements and caused damage，And no single act of infringement is sufficient to cause all the damage；The reason for the latter is，If the third party does not commit direct intentional infringement，Then the damage will not occur at all，The harmfulness of the perpetrators who violate security obligations and the behavior of third parties cannot be compared，The responsibilities are not on the same level。When our country’s law has innovatively provided for “supplementary liability”，The second view should be more appropriate。

What is striking about the first-instance judgment is，Mental damage compensation up to 400,000 yuan，This is unique in negligence tort cases。The judgment essentially confirmed two types of mental damage: one is the mental damage suffered by Jiang Qiulian due to Jiang Ge’s death，i.e. "Bereavement"。After the death of a natural person due to infringement，The mental damage compensation requested by his close relatives is the mental damage he suffered himself，It is still the deceased’s inherited right to claim for mental damage，Article 1 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Compensation for Mental Damage in Civil Torts" is not clear，It seems more appropriate to interpret it as the mental damage caused by the close relative。The first-instance judgment obviously adopts this view。The second is the mental damage caused to Jiang Qiulian by bet365 horse racing odds’s irritating remarks。Article 22 of the Tort Liability Law does not recognize “pure mental damage”，Mental damage will inevitably be accompanied by damage to personal rights and interests。Jiang Qiulian’s personal rights and interests damaged by bet365 horse racing odds’s remarks include damage to her mental health rights、Right of reputation, etc.，Therefore, the mental damage he suffered should also be compensated。From the subject of litigation，The mental damage Jiang Qiulian suffered due to Jiang Ge’s death can certainly be tried in this case；But after Jiang Ge’s death，bet365 horse racing odds’s direct infringement caused mental damage to Jiang Qiulian，It is another legal fact different from this case，Theoretically, the trials cannot be combined。But for reasons such as reducing litigation，The court consolidated the hearing of requests for mental damage，It is reasonable。

　Remaining bet365 horse racing odds

Civil law has absorbed the bottom line social morality，Virtues are also included to a certain extent，But the field of tort liability only requires that the perpetrator must abide by the bottom line morality。The first-instance judgment combines law and morality as much as possible，To promote the core values ​​of socialism，Making the judgment achieve good social effects，The starting point is understandable。Jiang Ge and bet365 horse racing odds presented in the judgment are almost at the two poles of morality: one presents traditional virtues，One side has violated the bottom line of morality。But even without resorting to morality，Based on the requirements of bottom-line ethics in tort liability law and the concern of modern tort liability law on risk attribution，It can also be determined that the party that introduces danger in social interactions should bear reasonable security obligations to the other party。

The real problem is，The extent to which individuals fulfill their security obligations is very limited，Easy to be exempted from liability by proving reasonable and necessary security obligations，This may hurt public sentiment，Especially in this case。Whether bet365 horse racing odds violated her security obligations, especially the extent of the violation, remains to be investigated in depth，We can consider the idea of ​​the beneficiary’s claim for compensation。Although Jiang Qiulian did not file such a lawsuit，But in explanation，bet365 horse racing odds benefited from the damage to Jiang Ge’s right to life，bet365 horse racing odds should naturally bear the obligation to compensate。As for the specific share of compensation，It can be determined by the court，And the court can fully consider mental damage in its discretion。

　　(The author is a researcher at the Institute of bet365 horse racing odds, Chinese Academy of Social Sciences)