Security guards on duty to hurt others or victimization, who should be held responsible

Today we discuss both the rights and obligations of security guards. Security guards in the performance of duty to cause harm to the dispute and its responsibility a. Security guards in the performance of duty to cause harm to the dispute. The basic duty of the security guard is to maintain order and security, therefore, the security guards in the performance of their duties will inevitably occur in the process of some of the damage caused by the incident: such as the security guards found that the owners have violated the order of the community public **** parking, visitors do not register in accordance with the agreement when the clashes occurred in a fight, to the owners or visitors to the injury; security guards on behalf of the guests parked his car when the car collided with other cars, to the owner of the car to bring about economic losses, etc. In addition, there are security guards do not perform their duties to the dispute and its responsibility to assume a security guards. In addition, there are also security guards who do not fulfill their duties and are not on duty, resulting in the owners not being able to call for help, and eventually the owners filed a claim for compensation. All of the above is not uncommon in life. To summarize, there are only a few scenarios: First, the security guards perform their duties in violation of the law, resulting in damage to others. In this case, the security guards use violence to perform their duties, which is already illegal; secondly, the security guards perform their duties in accordance with the law and the contract, which leads to other people's damages; and thirdly, the security guards fail to perform their duties in accordance with the contract, which leads to other people's damages. When such incidents occur and the victims ask the security guards to claim compensation from the security company or the employing organization, the security company and the employing organization will not be able to accept the responsibility, which will lead to dissatisfaction of the victims and intensify the conflict. Other security companies and employing organizations reply to the victim that the security guard's use of violence to cause injury is beyond the scope of his or her authority and does not belong to his or her duties, and that the security guard should be held personally responsible for his or her actions, and that the organization has nothing to do with him or her. Some security companies or employing organizations claim that the security guards have violated the law in performing their duties, have been dismissed, and are unaccountable for their whereabouts, refusing to assume responsibility. Other employers claim that they have signed a contract with the security guards with the clause of "all responsibilities are to be borne by the security guards themselves", and refuse to take responsibility. Second, the legal responsibility of the security guards in the performance of their duties to cause harm to the dispute analysis. In response to the security guards perform their duties to harm several phenomena, in the life of the disputes triggered by the continuous. This paper will be next on the different circumstances of such disputes on the legal level of analysis and discussion. (a) Security guards perform their duties in violation of the law, resulting in injury to others, thus violating the criminal law, the security guards should bear the corresponding criminal liability. If there is an incident in which a security guard has beaten up a property owner, causing serious injury to the owner, then the security guard constitutes the crime of intentional injury and should bear the corresponding criminal responsibility, which should be uncontroversial. In reality, due to the current security team culture base is poor, do not understand the law, do not abide by the law, younger, easy to impulse, so such events appear more. (b) security guards to perform their duties lead to other people's personal, property damage, civil liability is more complex, the law is more vague, judicial practice to deal with the results of different, academic also has no conclusions. This is now analyzed in depth. 1. At the level of legal provisions: the security guard unit bears civil liability. Article 34 of the Tort Liability Law stipulates: "If a staff member of an employing organization causes damage to another person as a result of carrying out his or her work, the employing organization shall bear the responsibility for the damage." Article 46 of the Regulations on the Administration of Security Services stipulates: "If a security guard causes personal injury or death or property damage to another person in the course of providing security services, the security unit shall pay for the damages; if the security guard is intentional or grossly negligent, the security unit may, in accordance with the law, recover the damages from the security guard." According to the law, if the security guards are directly employed by the employing organization, the employing organization and the intentional or grossly negligent security guards shall bear joint and several liability; and for the security guards who perform their duties without any intent or grossly negligent, the employing organization shall bear the civil liability for the damages caused by the security guards; if the security guards are sent by the security company, and the employing organization carries out the management, the security guards shall bear the civil liability with the security company for the intentional or grossly negligent damages caused by the security guards. If the security guards are sent by the security company and managed by the employing organization, then if the security guards are intentional and negligent, the security guards and the security company shall be jointly and severally liable; if there is no intent or gross negligence, the security company shall be held liable for the corresponding compensation.2 In judicial practice, there is no disagreement on the situation where the employing organization directly hires the security guards. In judicial practice, there is no objection to the situation where the employing organization directly employs the security guards. However, in the case where the security company signs a contract with the security guards and dispatches the security guards to be managed by the actual employing organization, the court's handling of the case has yielded different results. Some courts have ruled that the employing unit and the security guard are jointly and severally liable, while others have chosen to hold the security guard, the employing unit and the security company jointly and severally liable in such cases.3 With regard to the civil liability of security guards for damages caused to others in the performance of their duties, if the employing unit hires the security guards directly, the main body of the liability can be determined as long as it is judged to determine whether or not there is any intentional or grossly negligent intent on the part of the security guards. On this issue, the law is clear and there is no objection in judicial practice. The key is that in the case where the security company sends out the security guards and the employing unit manages the work of the security guards, the provisions of the law are rather ambiguous, and the judicial practice is also inconsistent in dealing with this issue. In the author's opinion, in the case where the security guards are dispatched by the security company and the employing organization carries out the actual management of the security guards, there is no objection to the direct employment of security guards by the employing organization in the judicial practice, although there exists between the security guards and the security company. In judicial practice, there is no disagreement about the direct employment of security guards by the employing organization. However, in the case where the security company signs a contract with the security guards and dispatches them to be managed by the actual employing organization, the court's decision varies. Some courts have ruled that the hiring unit and the security guard should be held jointly and severally liable, while others have chosen to hold the security guard, the hiring unit and the security company jointly and severally liable in such cases. 3. With regard to the civil liability of security guards for damages caused to others in the performance of their duties, if the hiring unit hires the security guards directly, the main body of liability can be determined by determining whether or not there is any intentionality or gross negligence on the part of the security guards. On this issue, the law is clear and there is no objection in judicial practice. The key is that the security company sends out the security guards, and the employing organization manages the security guards' work, the legal provisions are vague, and the judicial practice is also different. In the author's opinion, in the case of a security guard sent by a security company and managed by the employing organization, although there is an actual situation between the security guard and the security company, the person liable for compensation should also compensate for the necessary rehabilitation costs, nursing care costs, and follow-up treatment costs." (iv) The employing organization or the security company should be responsible for the compensation of the security guard. (d) After the employing organization or security company has paid compensation, it may exercise its right to recover compensation for intentional and grossly negligent security guards. If a security guard mistakenly injured Zhou Mou, who entered a construction site at night as a thief, then, first, the construction company should bear the joint and several liability for Zhou Mou, and the security guard should bear the criminal liability for intentional injury. Secondly, the construction company should bear Zhou's medical expenses, lost wages, nursing costs, transportation costs. Secondly, the construction company should be liable for Zhou's medical expenses, lost wages and transportation costs. Thirdly, the construction company may recover compensation from the security guards. (e) The exemption clause signed between the security guard and the employer cannot exempt the employer from liability. Such as once a property company claimed that the security guards beat others has belonged to the illegal performance of duties, should be held responsible by the security guards. This argument circumvents the legal responsibility, is wrong. The supreme people's court "on the trial of personal injury compensation cases on the application of law a number of issues of the interpretation of" article 9 provides: "employees in the employment activities caused damage, the employer shall bear the responsibility for compensation, the employee due to intentional or gross negligence caused damage to the employer shall bear joint and several liability; employer to bear the joint and several liability, can be recovered from the employee." The term "engaging in employment activities" referred to in the preceding paragraph means engaging in production and business activities or other labour activities within the scope of the employer's authorization or instructions. If an employee's conduct exceeds the scope of authorization, but its manifestation is the performance of duties or is intrinsically linked to the performance of duties, it shall be deemed to be "engaging in employment activities". Therefore, the acts of the security guards are acts of duty, and the employer should be held responsible. In addition, the contractual terms signed between the employing organization and the security guards, that is, "all responsibility shall be borne by the security guards themselves", circumvents the law and jeopardizes the interests of third parties, and is therefore null and void, and the property management company shall be held liable for compensation in accordance with the law. (f) If a security guard fails to perform his duties and causes damage to the owner, the security company shall bear the responsibility. If a security guard fails to perform his duties as agreed, and is not on duty, or fails to fulfill his duties, resulting in the owner being injured by bandits, the security company shall bear the liability for compensation and then recover the compensation from the security guard. Disputes and Responses to Disputes Arising from Injuries Caused by Security Guards in the Performance of Their Duties. The basic duty of a security guard is to maintain order and security. Therefore, when the owner is in danger, the security guard has the duty to come forward to protect the owner's safety. It is not uncommon to see security guards performing their duties to the detriment of themselves: some security guards have been injured by burglars and criminals in order to protect the lives and property of owners; some security guards have been injured in the course of enforcing the relevant regulations and performing their duties in the event of a confrontation with an owner, for example, when advising an owner that he should not park his car indiscriminately, and then being beaten by the owner for no apparent reason; and there have also been disputes arising from injuries sustained by security guards while rescuing the owner's property. There are also cases where security guards are injured while rescuing the property of the owner, such as when a security guard helps to repair the heating pipe of an owner's house and falls down. ...... In the above cases, when the security guards were injured and demanded to be compensated by the owner, the owner claimed that it was the security guard's duty to rescue the property and protect the owner's safety, and that the owner should not bear the responsibility of compensating the security guards. On the other hand, the employer and the security company claimed that the behavior of the security guards belonged to the "extra work", that it was an act of bravery and a pleasure to help others, and that the owner should bear part of the responsibility. Second, how to protect the rights of security guards when they are injured in the course of their duties. Take the example of a security guard who was injured in a fall while repairing the heating pipes of the owner's house. The housing and supporting facilities and equipment and related sites for repair, maintenance, management, maintenance of environmental health in the property management area and related order of the activities, is a basic work of property management services. Article 47 of the Property Management Regulations stipulates that: "Property management enterprises shall assist in the safety precautionary work in the property management area. In the event of a security incident, the property management enterprise shall, while taking emergency measures, promptly report the incident to the relevant administrative department and assist in the rescue work." At the same time, Article 14 of the current Work Injury Insurance Regulations stipulates: "If an employee has one of the following circumstances, it shall be recognized as a work injury: (1) In the working time and workplace, he/she is injured by an accident due to work reasons. ...... "In the event of a security accident, the security guards shall, while performing their rescue duties, suffer damages. The security guards in the security accidents, to perform rescue duties when the damage, belongs to the "in the working time, workplace" due to accidental injury, since "to assist in doing a good job of security prevention work in the property management area" is the property management department of a job duty, then, let the owners bear responsibility is There is no legal basis for this. Therefore, as long as the security guard's injury is caused by the performance of his duties, of course, it should be recognized as a work-related injury, and the unit should be given work-related injury treatment in accordance with the relevant legal provisions. Therefore, the security guards should ask the employer to give them work injury treatment according to the law. It is irresponsible for the employing organization to shift the responsibility to the owner, which is also contrary to the law. It should be noted that, if the security guard is injured by a thief and the owner of the neighborhood, according to the provisions of the Tort Liability Law, the tortfeasor shall bear the responsibility for the infringement of rights. This is not in conflict with the treatment of work-related injuries. Article 12 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases also provides that: "If a worker of an employer who is required by law to participate in the Work Injury Insurance Coordination Unit suffers personal injury as a result of a work-related accident, and the worker or his/her close family members file a lawsuit with the People's Court requesting that the employer assume the responsibility for civil liability, the employer will be informed to handle the matter in accordance with the provisions of the Work Injury Insurance Regulations. The worker or his/her close relatives shall be informed to handle the case in accordance with the provisions of the Regulations on Work-related Injury Insurance. If a third party other than the employing organization infringes upon the personal injury of a worker, and the person entitled to compensation requests the third party to assume civil liability, the people's court shall support the request." Therefore, if a security guard is injured as a result of a third party's tort, the security guard can demand that the employing organization provide him with workplace injury treatment in accordance with the law, and at the same time, he has the right to demand that the tortfeasor bear the responsibility for the injury. With the development of the property management market, the demand for security guards will become greater and greater. The question of how to strengthen and standardize the management of the security force and improve the overall quality of the security force is also becoming more and more urgent. Whether the security guards to perform their duties to others damage or their own harmed, is what we do not want to see. And for this kind of problem, can not just stay in the event after the occurrence of the negative response, but should be combined with the prevention beforehand. For different subjects, there should be different revelations: First, for security companies, efforts should be made in the following two aspects: First, the standard conditions for recruiting security guards must be strictly enforced, training and education must be strengthened, and high-quality security guards must be recommended to employers. Firstly, they must strictly recruit security guards, strengthen training and education, and recommend high-quality security guards to employers. They should insist on knowing the performance of the employed personnel, strengthen supervision and management, and dismiss unqualified personnel in a timely manner, so as to ensure the service quality and level of the security team. Secondly, the business training of security guards should be strengthened, and pre-job training and on-the-job training should be done well. Strengthen the legal education related to security guards, improve the legal awareness of employees, to avoid the recurrence of security guards hurt accident. Again, when the security company recommends or assigns personnel to the employer, both parties should sign a written contract or agreement to clarify their respective rights and obligations for the management of security guards. This will avoid disputes and damages after accidents or liabilities occur due to unclear agreement. In addition, the security company should comply with the relevant laws and regulations, and apply for various insurance procedures for the security guards, so that in case of work-related accidents, the security guards will be able to enjoy the treatment of work-related injuries insurance, and at the same time protect the interests of the company. Second, each employing organization should strengthen the management of security guards. Specifically: Firstly, if the security guards are employed by themselves, they should sign labor contracts with the security guards in accordance with the law and apply for social insurance, including work injury insurance. Secondly, the scope of responsibilities should be clarified. The employing organization directly manages the security guards, so the duties of the security guards should be clearly defined and strictly managed and supervised. Thirdly, the employing organization should be more aware of the law and should not direct security guards to engage in unlawful acts. Thirdly, for security guards, there should be two revelations: firstly, as employees of the organization, they must strictly abide by the laws, regulations and systems in the performance of their duties and activities, and must not be absent from duty without authorization, exceed their terms of reference, or accept unlawful arrangements to engage in unlawful activities. If some security guards have a weak sense of law and think that catching a thief and beating him up is justified, they do not know that anyone who beats up a thief and causes him to suffer injuries or death may constitute a crime and face legal sanctions. Secondly, once they have suffered personal injury in the performance of their duties, security guards should have the courage to defend their rights and demand that they be entitled to occupational injury insurance benefits in accordance with the law. If there is a tortfeasor, they should also demand compensation from the tortfeasor. Fourth, for the majority of owners, there should be a healthy mentality, strengthen communication with the security guards, take the initiative to cooperate with the work of the security guards, so as to ensure the safety and order of the units.