Study On The Safety-guard Duty In Tort Law

Nowadays the legal relationship in our society becomes more and more complex. But the traditional tort law can't deal with some new problems because of the law's hysteresis and discomprehensiveness. The most important problem now is that persons who undertake some business or social activities idle to take some reasonable actions so that other persons suffer personal or property damage, but the victims can not get the full and timely compensations. Under this reason, judges established the positive duty to act in order to ensure others'personal or property security, which is the same as Verkehrspflicht in German law, obligation de securite in French law, the safeguard duty in Japanese law and the duty of reasonable care in the Anglo-american law. On the basis of analyzing them from a comparative law perspective and combining the specific circumstances of our country, the author sets forth the necessity and rationality to establish the system of the safety-guard duty.The safety-guard duty in tort law is a complicated system,which includes many problems, such as, how to determine the bodies of the legal relationship, what is the main content, where are the scopes of application, how to determine whether the obligor has implemented the duty or not, what is the liability of breach of the duty and so on. The author studies Verkehrspflicht in German law and the duty of reasonable care in the Anglo-american law which are the bases to establish the safety-guard duty in our county. And then the author makes a systemic discussion on the safety-guard duty of our county. The innovation of the dissertation is as following: expounding the corresponding systems in the continental law and the common law comprehensively, analyzing the scopes of its application in our country thoroughly, and setting forth the reasons and then bringing forward some suggestions, as far as the non-scientificity of judicial interpretations about the liability of breach of the duty is concerned.The presentation of the safety-guard duty is a rectification about the mistake of only paying attention to the positive tortious actions in traditional tort law. There are economic, sociological and philosophical theories bases to support the generation and existence of the safety-guard duty. The safety-guard duty system collocates the social resources more reasonably, protects the personal interests and the whole interests of the society and develops the spirit of the social mutual cooperation, which is in favorof constructing a harmonious society.