The Study On The Duty Of Care In The Tort Law

Aiming at the duty of care in the tort of negligence, this thesis take the exhaustive analyze of the concept, character, history and development, scope, cognizance standard of the duty of care through the methods of comparative analysis, historical analysis and case analysis. According to the theory of the duty of care, there are the following factors when judging whether the doer undertakes the tort liability of negligence or not: the existence of the duty of care, the breach of the duty of care, damage and causation. Be showed from this, the duty of care is the core concept that constitutes the tort liability of negligence. This thesis is divided into the following four parts totally:The first part mainly discussed the important position of the duty of care in the tort of negligence. The negligence liability principle is on the dominant ground in the tort law. There are three theories for the character of the negligence: the subjective standard theory, the objective standard theory and the integrative standard theory of the subjective and the objective. The subjective standard theory says the negligence is the doer's condemnatory and mental appearance; the integrative standard theory of subjective and objective also says the negligence is the mental appearance, but it thinks that the judgment of negligence should adopt the objective standard. After analyzing the problems of the subjective standard theory and the integrative standard theory of the subjective and the objective, the thesis thinks that the judgment of negligence should adopt the objective standard theory. According to the objective standard theory, the negligence is a behavior of the breach of the civil duty of care; the duty of care is the core concept that constitutes the tort liability of negligence.The second part analyzes the theory of the duty of care through the methods of comparative analysis and historical analysis, introduces the concept, character, bring and development of the duty of care in the country of Anglo-American law system and the continental law system and our country. Analyzing the content and the scope of the duty of care on this foundation. The content of the duty of care includes the...