On The Balance Standards Of Duty Of Care In Tort With Fault

In tort with fault, the breach of duty of care constitutes the core element of fault.'Fault', originates from the'non-care'of the subject of act. China's tort law, in both legislation and theory, pays too much attention to the researches of imputation principle and constituting elements and lacks study of the subject of act and the objectively existing elements of duty of care; in practice, the fault is usually determined from the angle of the constituting elements. This article tries to explore the balance standards of duty of care. Firstly, this article analyses the subject of tort, compares requirements of tort liability capability in some countries and studies the current system of tort liability capability in China. Secondly, the article discusses the basis of duty of care and the anticipatability and avoidability of the consequence caused by fault from the angle of tort and points out that duty of care should be determined through the act relationship of the subjects and analyzed from the consequence that exists objectively, considering the anticipatability and avoidability of the consequences. Finally, on the basis of the discussion of the interest balance and policy balance of duty of care, the method of economic analysis and the application of good faith and so on, this article puts forwards that the essence of damages of tort lies in the allocation of the loss and results from the balance of interest of all parties; and the method of economic analysis as well as the method of good faith provides all-aspect test standard for duty of care. The balance method of duty of care possesses great meaning in terms of epistemology.