On The Duty Of Care Borne By Schools

In recent years, students injury accidents have aroused more and more attention. The issues of duty of care borne by schools have gradually become an important research topic. Ministry of Education has developed "Measures for the Handling of Student Injury Accidents ".Supreme People's Court has developed "Interpretation of some Problems Concerning the Applicable laws in Trial of Personal Injury Cases" .The NPC Standing Committee's has formulated "Tort Liability Law". These laws and regulations provide for the duty of care borne by schools . The relevant provisions of these laws and regulations have some problems, the duty of care borne by schools issues still need to explore.The duty of care borne by schools not only concerns to the kindergarten, primary, secondary, but also university . The duty of care borne by schools is a liability of act and an obligation to prevent and stop danger. The duty of care borne by schools is mainly based on theory of danger control,theory of benefit and theory of trust . The duty of care borne by schools is mainly from legal stipulation, contract agreement and the school's voluntary commitment . The duty of care borne by schools should adopt a relatively objective "reasonable person standard" to judge, of course, the specific conditions of the school should be considered. The duty of care borne by schools has a wide range of contents. Contents include duty of care resulted from education and management for students, educational facilities and equipment , external unsafe factors , force majeure, selection and supervision of teachers. The duty of care resulted from selection and supervision of teachers is mainly reflected in three cases :students corporal punishment by teachers,students services for teachers ,teacher's sexual assault on students.When breach of duty of care caused personal injury of the students, school should bear corresponding responsibility. Elements of the responsibilities are no different to the tortuous liability of act. There are "three elements" mode of France and "four elements" mode of Germany. China's "Tort Liability Law" is similar to the French model, but also it has Chinese characteristics. In the duty of care borne by schools the principle of fault liability should be adopted. However, when personal injury on no capacity for civil conduct of student is from school , "Tort Liability Law" provides for presumption of fault. Presumption of fault is not an independent responsibility principle, only increased the burden of proof on school. Since no capacity for civil conduct limited capacity of proof, such a provision is scientific.The subject who should be responsible for personal injury cases is often more than the school , therefore, there are many forms of responsibility: direct liability ,supplementary liability and liability by shares. "Interpretation of some Problems Concerning the Applicable laws in Trial of Personal Injury Cases" stated supplementary liability for the first time. "Tort Liability Law" followed it. Supplementary liability is a new type of responsibility, including the supplementary of order and share. Students should first seek the person who conducted direct infringing act for compensation . Can not determine the direct infringer or a lack of compensation for the direct infringer ability and only when asked for compensation from school. Schools take on supplementary liability only in its ability to prevent or stop . Supplementary liability is similar to joint and several liability which is not true, but really is different from the joint and several liability which is not true. In accordance with the "Tort Liability Law" , there are ten ways for school to take on the liability , not limited to "compensation", but compensation for the losses and moral damage compensation is the most important two ways . Here the "damages" specifically refers to compensation of loss of property."Mental damages"are provided in the"Tort Liability Law "for the first time in the form of law, this is significant. The school's liability for damages should include spiritual.We hope to solve the existing problems in judicial practice in our country through a further study on the duty of care borne by schools, in this way ,we may promote the theory of duty of care borne by schools , create a safer learning environment for students, provide a more comprehensive legal protection for the school's better education.