The Research On Duty Of Care In Tort Law

Duty of care is an important topic in the research of tort law, in the meanwhile a very important concept in tort law. In fact, the weigh of liability in tort of negligence revolves around duty of care. This text take duty of care in tort law as the research object, and the body of the thesis consists of four parts:Chapter one is the overview of duty of care in tort law. Therefore, firstly, it gives thedefinition of duty of care.——"The person should adopt reasonable of attention but avoidresulting in injure to Human body or property of others of obligation". Secondly, it tells the reasons why duty of care has an important position in tort law from three aspects, and meanwhile, it also points the necessity of the study on duty of care.Chapter two expounds the affirming existence duty of care in tort law. Different systems of law have different process in this issue. The former of Anglo-American law system includes: the possibility of foreseen standard, close neighbors standard and public policy. The nation of the continental law system have no explicit, widespread accept of similar affirm standard, generally, they affirm the person exist duty of care judging by the law, usual practice, regulation system and so on.Chapter three explores the affirming of breach of duty of care in tort law. The former of Anglo-American law system includes: the reasonable man standard and an aggregate-risk-utility test. At first, the continental law system judging by weather breaching the obligation of foreseeing result and avoiding result. With the development of tort law, now,more and more countries of continental law system adopt objective standard——"theordinary people of the society" to judge breach of duty of care or not.Chapter four focuses on the author's suggestions on the judging standard duty of care in tort law of our country. It include two sides: affirming of existence of duty of care and affirming of breach of duty of care .In affirming of existence of duty of care, I think, first of all we should judge by the provision of the law; Secondly, if there is no related law provision, we should judge by the engagement of contract between client; thirdly, if there is no related law provision and the engagement of contract, we should judge by three steps: The first step is affirm whether existence the relationship of close neighbor between the defendant and the plaintiff; the second step is affirm the defendant has reasonable foresaw plaintiff and the injure dangerous or not while he carry out behavior; after carrying on judgment to two ex-standard, the third is consider the influence of the public benefits. In affirming of breach of duty of care, I think we should apply reasonable person standard for the common people, and apply special standard to the special community——weak sister and professional.