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Safety Of Care Obligations

Posted on:2005-09-08Degree:MasterType:Thesis
Country:ChinaCandidate:Y F SuFull Text:PDF
GTID:2206360125957997Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
This thesis puts its priority on the theoretical analysis of safeguard duty. From the viewpoint of history, the author talks about the birth and development of this duty. And the author holds that such a duty came from the judges' discretion and was confirmed by law. The actor who breaches this duty should take responsibility as tortfeasor. The rule of fault-presumption is applied here, which means the breach of this duty per se is presumed to be fault. The appearance of this duty results from the socialization of private law and the interaction of scholars, legislators and judiciaries. As a unified duty, it is the hybrid of the related duties in contract law, consumer protection law and culpa in contrahendo. Finally, the author points out the practical value of this duty.This thesis is composed of six sections.The introduction section mainly talks about the etymologic evolvement of this duty and reveals the value of this thesis. The author holds that safeguard duty was caused where one party is obliged to protect and take care of the other party. And if the party fails to do so he must take responsibility. The special combination relationship is the key of this duty. The duty originated from the German tort law and was invented to solve the general risks in life. With similar life, disputes and trouble-shooting thirst, it is necessary for our country to absorb such a duty. The introduction will be helpful in reducing risks and damages. And it will supervise the managers and producers to optimize their management and production condition. Then a more comfortable life environment will come into being and the current situation will be changed where humanism is lost and the safety of people and their assets is ignored.The first section mainly talks about the development of safeguard duty. The author holds that the duty originates from the German tort law as the result of judges' discretion. It used to be confined to the owner or manger who are responsible for the safety of public transportation. Later its reach was enlarged into other social engagements and this resulted in the formation of this duty. Its evolvement can beexplained from the following respects. With respect to political philosophy, the duty is a somewhat restriction of individual freedom, which results from the need to balance the conflict between individual freedom and social interests. With respect to economic philosophy, the duty is the denial of the "reasonable man" concept in Economics, which is the result of modern law's second-thinking about human's nature. Here the priority of law is put on social interests and the protection for the inferior. With respect to the ethic philosophy, the duty comes from the ideas that nobody can live outside the society, everyone's conduct is inevitably linked with social interests and there must be mutual credit among people. And credit is one of the reasons of the duty's formation. Meanwhile, the duty reflects the need for human right, especially the safety right. Finally the author points out that the duty comes into being as the knowledge about nonfeasance grows.The second section talks about the comparative study of safeguard duty. The author points out that the duty has been universally affirmed in many countries despite in various ways for their different legislations and legal traditions. Nevertheless the duty is seldom found in the codes of these countries. The author holds that in our country the duty can only be traced sporadically and is not taken as a general rule. Given the increasing accidents in China, it is necessary for our country to introduce safeguard duty and make it part of the future civil code. The import of this duty will protect the consumers better and provide them with a comfortable consuming environment.The third section mainly introduces the theoretical analysis of safeguard duty. The author holds that the duty is one source of the tort of nonfeasance. However with the growth of this duty, its reach comes to have the tort of nonfeasance and the tort of feasance both inclu...
Keywords/Search Tags:Safeguard Duty, Presumption of Fault, Holder's Liability, Humanism
PDF Full Text Request
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