Research On The Duty Of Care

Duty of care is an important concept in Negligent Tort Law as well as the core of tort study, which has been continually enriched and improved by two legal system countries through judicial practice. Duty of care system has formed an integrated theoretical system through centuries. This text introduces the historical changes and criteria of the general duty of care of German's, the high duty of care of France and the duty of care of the common law system as well as their important value of reference for materialization of judging negligence in our country.At present, in the articles of Tort Liability Law in force of our country, there is no General Duty of Care, which still stays at the level of research field. We can only find some trace of General Duty of Care from Tort Liability Law and other scattered provisions in relevant laws. Duty of care of western countries has significant value of reference for constructing judgement standard about negligence of Tort Law of our country. We can also refer to Civil Law System for specific system design of general duty of care, which adopts General Provisions + Enumeration legislative model. Specifically, it can be judge by the following steps. Firstly, it usually shall be defined as duty of care which stipulated in laws or behavior criteria generally accepted or observed by the local public under the same circumstance of the actors. Under the situation of being explicitly stipulated by laws, it shall be judged by the requirement of law to decide whether the actor meets his/her duties of care. If there are no legal provisions or the law is vague, we can refer to local transactions practices, common criteria of people's social interaction, good customs etc., for reference. Secondly, criteria of duty of care of special group should be applied when the actors are special group. Lastly, with respect to specific case, the Hand formula from Common Law System can be used to consider the risk itself. In addition, the imposition of duty of care should be compatible with the requirements of social public policy, and should also be limited from various aspects to balance freedom of behavior, interest protection of others and social effect. Thus, the imposition of duty of care is neither too low nor too high, which should be taken into consideration from beginning to end. By employing a comparative study, this paper is divided into three parts to research the duty of care. The first part introduced the historical development of West the duty of care, focuses on England, the United States, Germany, France, as a basis of the below-depth research on the duty of care's judgment standards. The third part discusses the judgment of the duty of care in the country of Anglo-American law system and continental law system, judging whether the behavior constitutes the tort liability of negligence or not. Firstly, the judgment of the duty of care in the country of Anglo-American law system, including to judge whether the duty of care is existent and to judge whether behavior of the doer breaches the duty of care. Specifically including the neighboring theory, the foreseeable theory, the factor of communal policy, reasonable man standard and An-Aggregate-risk-utility and so on. Secondly, the judgment of the duty of care in the country of continental law system, also including to judge whether the duty of care is existent and to judge whether behavior of the doer breaches the duty of care. Judging whether the duty of care is existent includes the law, statute, and the regulations, systems, professional usual traditions etc. Judging whether behavior of the doer breaches the duty of care refers to the duty for an actor, on the basis of legislation, exchange tradition, common norms of social communication and good customs, to predict and judge whether his act will cause damage, to act cautiously accordingly, and to take reasonable measures to avoid the occurrence of potential damages. The third part presents the enlightenment of the west duty of care, with a view to provide a reference to the legislation of China's Tort Liability Act and judicial practice.