A Comparative Study On Duty Of Care In Delicts Law

Duty of care in negligence law is usually stated in the form that the actor should be careful in the social communication and must not produce certain kinds of harm carelessly, or take some due precaution to avoid the potential risk. It is recognized as a principle in most of legislations that compensation for damage is not caused by fault, but by departure of conduct standard which is required in certain circumstance. Duty of care reveals the developmental trend in the future, when it's focus shifts from violation of right and interests to conduction. This dissertation aims at constructing a foundational theory of duty of care, including its existence in certain circumstance, duty breach, logical function, and the road by which duty of care is introduced into torts law system of china. The author purpose's is simple to provide a new solution to the judges and give some sound guides to the actors.Nowadays, duty pattern in the tort law is popular all over the world. Chapter one deals with the constructional mode of duty in the representative legislations in the world. There are two patterns to establish duty of care through comparative study. The first one is relative pattern adopted by Anglo-American law family, which considers the duty of care have two perspectives, law and the fact. Namely, duty of care can be divided into two parts: element of law and element of fact. In as much as this amount to an element of law that one must not carelessly inflict certain types of recognized harm on recognized categories of persons. That the element of fact would seem to be conduct, falling short of an ideal standard determined according to the circumstances, that inflicts some harm of a recognized type on a person belong to a recognized class, or on his property. The Verkehrssichrungspflichten in Germanic tort law is judge-made law. Everyone who produces a risk or keeps a thing in dangerous state has a duty take due precautions to protect absolute rights. In Japanese tort law, for extending the bound of protection, the duty of care changes from the standard of negligence to the standard of wrongfulness of conduct. It follows the steps of Germanic tort law. The second one is the strict and high level duty of care model taken by French tort law. Our country should take the first pattern according to the experiences of comparative law and the situations of the country.Chapter two focuses on the establishment of the duty of care, including the roadsand the methods. Duty of care has two resources. One is prescribed by the statute and the other is from the non-statute. The statute duty of care can also be divided into two parts: written law and Quazi-written law. The former is completely stipulated in the legislation, and the latter exists as customs, traditions, lab procedures, technical rules and manuals. As far as Germany Law and Anglo-American law are concerned, private and public law which aim at preserving interests of certain person or class can only produce the duty of care in tort law. Nevertheless, in French law there is another story, breach of any statute, In spite of its purpose, can bring about a private litigation. Of course, complying with the law does not mean that the actor is right and has no liability.Except the defined tort, there are some ways to establish the non-statute duty. The necessary duties in social community come from ethics, morality and daily life. On how to establish the duty of care outside statute, Anglo-American law accumulates much experiences and can give us some useful advices. For a long time, they used three factors to estimate whether the duty is exists or not. They are 'forseeability', 'proximity', and 'fair, just and reasonable'. The author considers that our country can transplant this three-stage-test.Chapter three explores breach of duty. The legislation in most countries chooses the same way when balancing whether the duty of care has been performed or not. Although the objective foreseeability standard eliminates the differences of personnel characters, the judge can consider the actors' condition in certain circumstance respectively. The care of average reasonable person can get from the balancing test between the protected interest of victim and the freedom interest of actor. In the test, we should confirm the magnitude of risk at first, then assess the cost of prevention, and compare both factors. We can use two methods to get the answer, namely the experience rule and the economic analysis. Furthermore, there are some important factors that can effect the breach, including customs, traditions, reasonable social expectations and other factors such as safety rules and legal policies.Chapter four analyzes the systematic function of duty of care. Usually duty and breach ordinary served as the criterion of accountability, but that is not the whole truth. The wrongfulness is the determined element of estimating conduct in continental tort law system, and the standard of wrongfulness is been evolving from the wrongful result into the conduct. As a result, the wrongfulness and the duty of care can form a benign interaction. On one hand, the wrongfulness is the vital factorswhich integrate the duty of care with the sense of jurisprudence and logic; on the other hand, duty of care can provide wrongfulness with the feasibility of changing the criterion. Duty of care is the basic criterion for both the wrongfulness and the accountability. Additionally, it has the ability to revise the dual-system principle of accountability in civil law family, because it can connect the fault liability with strict liability. With the help of duty of care, the dual-system shows some mobility.Chapter five discusses the juncture between duty of care and the tort law system of China. From the perspective of judgmental practice, it is necessary to introduce the duty and breach theory. Unfortunately, there are some obstacles on the way. For example, the accountability principles are blur, and many scholar reject the wrongfulness theory in our country. There is a possibility if we sweep out the above obstacles. On how to introduce the duty of care into the judicial system of our tort law, the best way the author consider is to place the duty of care in the core of establishing the liability to decide the Tatbestandmaesigkeit, wrongfulness and Vershulden.