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Study On The Duty Of Care In The Tort Of Neglience

Posted on:2009-11-23Degree:MasterType:Thesis
Country:ChinaCandidate:J L LiangFull Text:PDF
GTID:2166360245959285Subject:Legal theory
Abstract/Summary:PDF Full Text Request
In the field of the obligation of faulty tort, because of the objection of fault-judgment, the obligation of security attention has become the basis of judging whether the fault of the objective and play an increasingly important role. Meanwhile, it is continually strengthening the physical protection of victims, and the safety of property. This is because, the obligation of security attention, which was created by the judicial precedents, is not only the attention between the parties, which based on legal provisions, the lease agreement or in the first act, but also refers to the protection of the consumer or a certain specific community, which is offered by the operators of business activities, the organizers of the public activities. The establishment of the obligation of security attention or the obligations of protection, plays a positive role in judging whether an individual act belong to obligation of faulty tort or not. As it applies from the initial scope for public transport between the areas of security, and expand to the entire private law transactions, or even social activities in the field of general security and protection emerged from the contract obligations to the infringement of the security duty of care, attention from the safety of obligations Attention to human security obligations and social activities in the general safety obligations attention to the changing trends; security for the attention of the principal obligation, but also from the operator, organizers expanded to participate in social activities in general, as long as their is a dangerous source of Open or maintain, to have to take the necessary measures to prevent damage to the attention of security obligations.The article mainly by the introduction, body and conclusions of three parts, about 35,000 words, the main contents of briefings are as follows:Introduction of the duty of care that security is an important concept of tort law, in civil common law and common law the theory and practice of tort law is an important subject. At the same time, a simple analysis of the safety of the introduction of China's legal obligation to pay attention to the inevitable trend.The part of the body, the author of the comprehensive use of jurisprudence, law and economics, Comparative Law, and other research methods, to integrate theory and practice of analysis on the integration of the security obligations in civil common law and common law attention to the tort law on the formation and development of a detailed introduction ; Attention to security obligations of the rational person standard, hand formula were studied; attention to the safety of obligations established in China and in the judicial practice of the specific application of an analysis. This part is theoretical value, but also more practical value.The text is divided into three chapters:The first chapter is an overview of security duty of care. First, Note obligations on the safe production of classification and the obligations in the two law system theory and judicial practice. Among them, Germany and France in the security duty of care to compensate for the lack of legal standards that were introduced tort is a legal technical mending leakage. In Germany from the scope of the obligation for public transport is limited to the field of development to all spheres of social life. In Britain and the United States, attention is the fault of the absolute obligation to conditions has also gone from scratch stage. Secondly, pay attention to security reasons from four areas on the formation of the obligation. These four aspects is to risk and the need to expand tort liability, civil law on common law a useful reference, the principle of honesty and credit needs of the Criminal Code fault of the impact.Chapter II is for the criteria of the attention of security obligations. The first part of the solution contains illegal fault of the premise, and that the fault is the fault of the difficulty of judging. In analyzing the fault of subjective criteria and objective standards that said, my view is subjective nature of fault, but we can objectively judge the behavior. Second, a duty of care on rational criteria for judging people, rational people of the legitimacy of standards, content, practical application, and its relations with the statutory standard of performance for both the latter could apply for the first time. Finally, the article on the hand formula, used to measure the fault of tort law, the judge pointed out that this method is of positive significance fault.Chapter III is of obligations to the attention of security in our country in the applicable law of tort. Through the research, the author of the content gives some innovative point of view. First, on China's judicial interpretation of the safety and security obligations, then in theory the author of the security obligations of the nature of the three cases discussed, that the safety and security of volunteers is not a single conclusion, remain the same. Secondly, on China's tort law required the attention of security obligations, and the world needs a convergence tort law, review the Civil Code draft legislative proposals to the attention of security obligations. Third, China put forward to the concrete application of justice that is rational person standards and the use of hand formula. A rational person is a judge of the general negligence standard, in the absence of statutory standards of general application of this standard. This method usually requires the "middle-biased," the degree of attention, sometimes because of specific group of people of different and appropriate to increase or decrease the level of attention. The author of the use of hand formula that not only the perpetrators cost analysis, on whether the victim contributed to the cost of mistakes, stand between these two find the best risk-control points. Finally, rational human standards, legal standards, the application of hand formula order.In the end, the author advocates fault the judge for the first statutory criteria, the judgment of specific cases when the use of auxiliary rational person standards and hand formula. To draw the attention of the general security obligations of the way, the first of these standards that guide judicial practice, then the time is ripe for its rise to the law.
Keywords/Search Tags:negligence, duty of care, standard of duty
PDF Full Text Request
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