Who should bear the responsibility for the injury or victim of the security guard on duty?

Today we will discuss the rights and obligations of security guards. Disputes and responsibilities arising from the performance of duties by security personnel 1. Disputes arising from the performance of duties by security personnel. The basic duty of security guards is to maintain order and safety. Therefore, in the process of performing their duties, security guards will inevitably have some incidents that will cause harm to people: for example, security guards will find that owners park their cars in violation of public order and good customs in the community, and visitors will fight if they fail to register as agreed, causing injuries to owners or visitors; The parking service, a security guard, collided with his car, causing economic losses to the owner. In addition, the security guards failed to perform their duties and were not on duty, which made the owners unable to ask for help, and finally the owners claimed compensation. All of the above are not uncommon in life. To sum up, there are several situations: first, security guards violate the law while performing their duties, causing harm to others. In this case, it is illegal for security guards to perform their duties by violence; Second, security guards perform their duties in accordance with laws and contracts, causing damage to others; Third, the security guards failed to fulfill their obligations as agreed, causing damage to others. When this kind of incident happened, when the victim asked the security guard to claim compensation from the security company and the employer, the security company and the employer had a dispute over the responsibility, which led to the victim's dissatisfaction and intensified contradictions. Other security companies and employers replied to the victims that the use of violence by security guards caused injuries to others, which was beyond their authority and did not belong to duty behavior. Security guards should be personally responsible, not related to the unit. In this case, some security companies or employers claimed that security personnel were fired and disappeared, and refused to take responsibility for illegally performing their duties. Some employers claim to have signed a contract clause with the security guard that "all responsibilities shall be borne by themselves" and refused to take responsibility. Second, the legal liability analysis of disputes caused by security guards performing their duties. Several phenomena caused by security guards performing their duties have caused disputes in their lives. This paper then analyzes and discusses this kind of disputes in different situations at the legal level. (1) If a security guard performs his duties in violation of the law, causing injuries to others and violating the criminal law, the security guard shall bear corresponding criminal responsibilities. If the security guard really punched the owner, causing serious injury to the owner, then the security guard constitutes the crime of intentional injury and should bear the corresponding criminal responsibility. There should be no objection. In reality, there are many such incidents because of the poor cultural background, ignorance of the law, disobedience to the law and young impulsiveness of the current security forces. (2) The performance of duties by security guards leads to personal and property losses of others, and the civil liability for compensation is complicated, the legal provisions are vague, the judicial practice results are different, and the academic conclusions are inconclusive. This paper makes an in-depth analysis of this. 1, legal level: security practitioners bear civil liability for compensation. Article 34 of the Tort Liability Law stipulates: "If the staff of the employing unit cause damage to others due to the execution of their work tasks, the employing unit shall bear the tort liability." Article 46 of the Regulations on the Administration of Security Services stipulates: "If a security guard causes personal injury or property loss to others in the security service, the security business unit shall make compensation; If the security guard has intentional or gross negligence, the security business unit may claim compensation from the security guard according to law. " According to the law, if it is a security guard directly employed by the employer, the employer and the security guard with intentional or gross negligence shall bear joint and several liability for compensation; The employing unit shall bear civil liability for compensation for the security guards who intentionally or grossly fail to perform their duties and cause damage to others; If the security guards are dispatched by the security company and managed by the employing unit, if the security guards are intentional or negligent, the security guards and the security company shall bear joint liability; If there is no intentional or gross negligence, the security company shall bear the corresponding liability for compensation. 2. In judicial practice, there is no objection to the situation that the employer directly hires security guards. However, when the security company signed a contract with the security guard and sent the security guard, but the actual employer was responsible, the court's handling result was different. Some courts have ruled that the employer and the security guard bear joint and several liability, and some courts have chosen the security guard, the employer and the security company to bear joint and several liability in this case. 3. Regarding the civil liability of security guards for causing damage to others while performing their duties, such as the security guards directly employed by the employer, as long as it is judged whether the security guards have intentional or gross negligence, the subject of responsibility can be determined. On this issue, the law is clear, and there is no objection in judicial practice. Key-off is when the security company sends security guards and hires a person to manage the security work. The legal provisions are vague and the judicial practice is not the same. The author thinks that although there are two problems between security guards and security companies in the case that security guards are dispatched by security companies and actually managed by employers, there is no objection to the situation that employers directly employ security guards in judicial practice. However, in the case that the security company signed a contract with the security guard and sent the security guard, but the actual employer managed it, the court's handling result was different. Some courts ruled that the employer and the security guard were jointly and severally liable, while others chose the security guard, the employer and the security company to be jointly and severally liable in this case. 3. Regarding the civil liability of security guards for causing damage to others while performing their duties, such as the security guards directly employed by the employer, as long as it is judged whether the security guards have intentional or gross negligence, the subject of responsibility can be determined. On this issue, the law is clear, and there is no objection in judicial practice. The key point is that in the case that security companies send security guards and employers manage security guards, the legal provisions are vague and judicial practice is also different. The author thinks that the necessary rehabilitation expenses, nursing expenses, follow-up treatment expenses and compensation obligors should also be compensated when the security guards are dispatched by the security company and actually managed by the employer, although there are occasional problems between the security guards and the security company. "(four) after the compensation by the employer or the security company, the security guard who has intentional and gross negligence may exercise the right of recourse. If a security guard accidentally injured Zhou, who entered the construction company's site at night, as a thief, then, first of all, the construction company should bear joint and several liability for Zhou's accident, and the security guard should bear criminal responsibility for intentional injury. Secondly, the construction company should bear the weekly medical expenses, lost time, nursing expenses and transportation expenses. Thirdly, after the construction company pays compensation to Zhou, it can recover from the security guard. (5) The unit exemption clause signed by the security guard and the employer cannot exempt the unit from liability. If a property company once claimed that the security guards beat others, it was illegal to perform their duties, and the security guards should bear the responsibility. This statement of evading legal responsibility is wrong. Article 9 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates: "If a laborer causes damage to others in employment activities, the employer shall bear the liability for compensation, and if a laborer causes damage to others due to intentional or gross negligence, he shall bear joint liability with the employer; If the employer is jointly and severally liable for compensation, it may claim compensation from the laborer. "Engaged in employment activities mentioned in the preceding paragraph refers to engaging in production and business activities or other labor activities within the scope authorized or instructed by the employing unit. The employee's behavior is beyond the scope of authorization, but its manifestation is or is intrinsically related to the performance of duties, which should be considered as "engaging in employment activities". Therefore, the security behavior belongs to professional behavior and should be borne by the employer. In addition, the contract clause of "all responsibilities shall be borne by the employer and the security guard" is invalid because it circumvents the law and harms the interests of the third party, and the property company shall be liable for compensation according to law. (six) security guards do not perform their duties, causing damage to the owner, the security business unit shall bear the responsibility. If the security guard fails to perform his duties as agreed, and the owner's body is injured by gangsters due to his absence or failure to perform his duties, the security service unit shall bear the liability for compensation and then recover from the security guard. Disputes caused by injuries of security guards in performing official duties and countermeasures 1. Disputes arising from injuries of security personnel in performing their duties. The basic duty of security guards is to maintain order and safety. Therefore, when the owner is in danger, the security guard has the obligation to stand up and protect the safety of the owner. It is not uncommon for security guards to cause their own injuries when performing their duties: some security guards were injured by thieves and gangsters in order to protect the lives and property of owners; A security guard was injured when he collided with the owner while performing relevant regulations and duties, and was beaten by the owner for no reason when persuading the owner not to park at will; There are also security guards who were injured while saving the property of the owners. For example, the security guard accidentally fell down while helping the owner to repair the heating pipe ... The security guard was injured and asked the owner for compensation. The owner claims that it is his duty to rescue property and protect the owner's safety, and the owner should not be liable for compensation. However, employers and security companies claim that the security guard's behavior is "out of line" and is a courageous act, and the owner should bear part of the responsibility. Second, how to protect the rights of security guards when they are injured in the performance of their duties. Give an example of a security guard accidentally falling down while repairing the heating pipe of the owner's house. Maintenance, conservation and management of houses, supporting facilities, equipment and related sites in the property management area, and maintenance of environmental sanitation and related order are a basic task of property management services. Article 47 of the Property Management Regulations stipulates: "Property management enterprises shall assist in the safety work within the property management area. When a safety accident occurs, the property management enterprise shall, while taking emergency measures to assist the rescue work, report to the relevant administrative departments in a timely manner. "At the same time, Article 14 of the current Regulations on Work-related Injury Insurance stipulates:" An employee who has one of the following circumstances shall be deemed as a work-related injury: (1) During working hours and workplaces, he is injured by an accident due to work reasons ... "The damage suffered by security personnel while performing rescue duties in the event of a safety accident belongs to' being injured during working hours and workplaces'. Since "helping to do a good job in safety prevention in the property management area", as long as the injury caused by the security guard performing his duties, it should of course be recognized as a work-related injury, and the unit will give work-related injury treatment in accordance with relevant laws and regulations. So at this time, the security guard should ask the employer to give work-related injury treatment according to law. It is irresponsible and against the law for an employer to shift the responsibility to the owner. It should be noted that if the security guard is injured by the thief and the community owner respectively, according to the provisions of the Tort Liability Law, the infringer shall bear the tort liability. This does not conflict with the treatment of work-related injuries. Article 12 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases also stipulates: "If an employee of an employer who should participate in the overall planning of industrial injury insurance according to law suffers personal injury due to an industrial accident, and the employee or his close relatives bring a lawsuit to the people's court, requesting the employer to bear civil liability for compensation, they shall be informed to handle it in accordance with the provisions of the Regulations on Industrial Injury Insurance. The people's court should support the claim that the personal injury of workers was caused by a third party other than the employer. "Therefore, if the injury of security personnel belongs to the tort of a third party, security personnel can not only ask the employer to give work-related injury treatment according to law, but also have the right to ask the infringer to bear tort liability. Some Revelations on the Harm Caused by Security in Performing Their Duty With the development of the property management market, the demand for security will be increasing. How to strengthen and standardize the management of the security team and improve the overall quality of the security team is becoming more and more urgent. We don't want to see whether the security guards perform their duties and cause harm to others or ourselves. For this kind of problem, we should not only stay in the passive response after the incident, but also combine it with prevention in advance. For different subjects, there should be different inspirations: first, for security companies, efforts should be made in the following two aspects: first, we should strictly enforce the recruitment standards of security guards, strengthen training and education, and recommend high-quality security guards to employers. Insist on understanding and mastering the performance of hired personnel, strengthen supervision and management, promptly clean up and dismiss unqualified personnel, and ensure the service quality and level of the security team. Secondly, it is necessary to strengthen the professional training of security guards and do a good job in pre-job training and on-the-job training. Strengthen the relevant legal education of security guards, improve the legal awareness of employees, and avoid the recurrence of personal injury accidents of security guards. Thirdly, when the security company recommends or appoints personnel to the employer, both parties should sign a written contract or agreement to clarify their respective rights and obligations in the management of security guards. Avoid disputes and losses caused by unclear agreement, accidents or liability accidents. In addition, security companies should abide by relevant laws and regulations and handle various insurance procedures for security guards, so that in case of work-related accidents, security guards can enjoy work-related injury insurance benefits and protect the interests of the company. Two, the employer should strengthen the management of security guards. Specifically: First of all, if you are a self-employed security guard, you should sign a labor contract with the security guard according to law and handle social insurance including work-related injury insurance. Secondly, the scope of responsibility should be clarified. The employer directly manages security guards, so it is necessary to clarify the responsibilities of security guards, strictly manage and supervise them. Third, all employers should strengthen their legal awareness and not direct security guards to engage in illegal acts. Three, for security guards, there should be two aspects of enlightenment: First, as employees of the unit, they must strictly abide by laws, regulations and systems in their work activities, and must not leave their posts without authorization, exceed their authority, or accept illegal arrangements to engage in illegal activities. If some security guards have a weak legal awareness, it is natural to catch thieves and hit people. As we all know, anyone who beats a thief and causes his injury or death may constitute a crime and face legal sanctions. Secondly, in the event of personal injury due to the performance of duties, security guards should be brave enough to defend their rights and demand work-related injury insurance benefits according to law. If there is an infringer, it shall also demand compensation from the infringer. Four, for the majority of owners, should have a healthy mentality, strengthen communication with security personnel, actively cooperate with the work of security personnel, so as to ensure the safety and order of all units.