Research On Duty Of Care In Tort Law

Duty of care is a fundamental concept in both Common Law and Continental Law system. It plays a critical role in determining infringment by negligence in both systems. This paper attempts to address the integration of the theory of Duty of Care, which has been long established in many other countries, into the law system of our country, for the purpose of introducing a new mechanism for judicial practice and providing a practical guidance for individuals.The paper is divided into five sections.The first section gives a brief overview of duty of care in tort law.Firstly,it gives the definition of duty of care——The person should adopt reasonable attention but avoid resulting in injure to human body or property of others of obligation. Secodly, it tells the history of duty of care. Then it points the reason 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. And the origin of duty of care bases on the judgement on statuary and non-statuary laws, customs, common sence, fore-behaviour , profession etc.The second section focuses on the content of duty of care and its coverage. An individual owes duty of care either through his/her interaction of the physical environment or the interaction with other individuals. Depending on the nature of these interactions, Duty of care can be divided into nine categories and I will discuss the characterizations of each type.As an important component of this paper, the third section discusses the conventional criterion for determining existence of duty of care in Continental Law countries, reviewing its sources in both statuary and non-statuary law. By demonstrating a rich set of case studies, I will articulate the criterion for establishing duty of care in Common Law countries, including the doctrine of proximity, the doctrine of predictability, and the impact on the public policy. The fourth section explores the criterion for determining breach of duty of care in tort law. To decide whether a defendant has violated his duty of care to the plaintiff, or that to decide negligence, legal regulations should be considered firstly. The"reasonable man standard"is the general criterion accepted by two main legal systems. Actually, the reasonable man standard is an objective one, i.e. whether the behaviors of a defendant are negligent is judged by an outside standard and not by the subjective capability of the defendant himself. The reasonable man standard in the negligent tort action is flexible, applicable and open, which can develop with the actual needs. It is generally believed that a court adopts aggregate-risk-utility standard when deciding the negligence of the parties in negligent tort cases. In fact, it is to judge the negligence of the parties by way of economic analysis. The factors needed are usually the possibility of causing harm, the degree of harm, the cost for preventive measures and the social value of the action of the actor.We conclude the paper in section five, which discusses the use of duty of care in our country. First, I will show the deficiency of current infringement law in our country in both theory and practice and establish the need for introducing duty of care. I will then analyze the general principle and implementation process for introducing duty of care into the tort law system in our country. I will offer my personal opinion from legislative, judicial, and mechanism perspectives in order to improve the tort law of our country.