The Research On Duty Of Care In Civil Law

The duty of care in civi] law is an active or passive duty for violating a foreseeable damage, which claims the doer to make his behavior accord with an objective reasonable standard. The duty of care is not only an essential factor on illegitimacy but also a key element of constructive conditions of liability in the tort of negligence in common law. But according to the popular theory of constructive conditions of liability in China, duty of care is neither of them. It is only a key factor on one of four elements of liability in the tort of negligence. The author suggests that it is necessary to rebuild the constructive conditions of liability in the tort of negligence, which should contain these elements as follows: (1) the existence of a duty of care; (2) the breach of that duty; (3) causation; (4) damage.The weigh of liability in the tort of negligence revolves around the duty of care. The process includes two stages. In the first, judge should make it sure that there is a specific duty of care between the parties. Secondly, judge should consider whether the! defendant violated the duty or not. Different systems of law have different process in this issue. The author advocates that the two-stage test in Anglo-American law system should be adopted in China.The breach of duty of care should also be considered from these two special angles. From one angle, duty of care can be divided into the duty of care in statutory law and the duty of care out of statutory law by the difference in sources of law. The breach of the duty of care in statutory can directly identify the existence of negligence. From another angle, duty of care can be divided into active duty of care and passive duty of care by different behavior manner. Most duty of care is passive duty, but the doer should undertake active duty of care for his not doing something in some specific situation. The breach of this duty of care will lead to passive negligence.