Comparison On The General Duty Of Care In Torts

The general duty of care is an important system in the field of Civil Law.It developed with the accumulation of judicial precedents by the practice of judges,and it is a standard of care have to be met by the ordinary people.Specially,the one who creates and sustains particular hazar has to pay attention to this hazar because of principle of good faith, good customs or some unwritten social rules,etc;and the one have the obligation to remove or prevent the hazar for most people.The study of the general duty of care is a hotspot,it has been attracting the attention of civil and commercial law academic as an fatal consideration in negligent tort.The general duty of care originates and borrowed from the west.In foreign countries,the system has formed a integrated theoretical system through centuries.The essay has studied the historical changes and the legal regulations of German's the general duty of care,French' the high duty of care and the common law system's the duty of care,and try to provide some standards for the establishment of the system of the general duty of care.China's legal system lets the civil law system dominates,and absorts the advantages of the common law system.In building the general duty of care system,we can borrow the model of combining theory and practice in the civil law system.For instance,in some special cases,we can build the general duty of care framwork and do some parcitical legal work through related legislation.For example,we can adopt the model of"general conditions+enumeratin".In some uncovered field,the judges can be endowed with more rights to explain this duty to reduce obligees losses caused by general hazards;In some covered field,judges should be strictly in accordance with the law under the guidance of laws and regulations.In the common law system,the duty of care is the core of negligent torts,its technique of judging negligent torts is more operational than the one in the civil law system,especially its criterials on breach of duty of care,such as reasonable person standard,fair and impartial standard and neighbor principle have an important reference value in our judicial adjudications.