公私法匯流的閘口

我國在公法和私法維度上均存在大量的安全保障義務條款，安全保障義務已經成為一種融合各維度立法的體系。安全保障義務通過轉介的方式對接了公法體系中的安全保障要求，是公法與私法相互工具化的管道性條款。但在將公法規範以轉介方式注入私法並適用於網路經營者時，可能引發民法體系內部責任競合、公法與私法之間的體系性碰撞和責任重合、轉介條款與被轉介條款的時間錯位、程式繁簡不均造成救濟困境等問題。合理界定網路經營者的安全保障義務，需要注意公共治理與私權維護可能存在的目標偏離並合理把握注意義務的標準。

China has a large number of security obligation clauses in both public and private law. Security obligation has become a system that integrates legislation of all dimensions. In the manner of ''switch-over'', security obligation connects the requirements of safety protection in public law, which is a channel clause of mutual instrumentalization between public and private law. However, when switching over public law norms into private law and applying them to network operators, it may lead to problems such as the concurrence of liabilities within the civil law system, the systematic collision and coincidence of liabilities between public and private law, the time dislocation of switch-over and switched-over clause, and the imbalance of complicated and summary procedures leading to relief difficulties. In order to define security obligation of network operators reasonably, attention is required to the possible goal deviation between public governance and private right protection, so that a reasonable standard of duty of care can be established.