Modern Tort Law Duty Of Care Study

With the rapid development of science and technology, there are all kinds of potential dangers in all walks of life. Accordingly, a scientific system of tort law should have the following functions:It should not only guarantee people's enthusiasm and creativity of their behaviors to realize their own benefits and to promote the development of society and the economy prosperity, but also guarantee the reasonable compensation for the damage caused by the breach of rational duty of care, so as to achieve the balance of the benefits among the offender, the offended and society. It can not only insure the healthy development of society on the basis of the real world's meeting the need of tort law, but also remain its effectiveness in satisfying the future development of the society. The modern system of tort law has its defects — the limitedness of lawful rights and the uncertainty of legal benefits, which hampers the realization of the modern tort law's functions.So when we focus on the protection of right and legal benefits, we may as well take measures to regulate people's behaviors, that is, different rational duty of care should be imposed on the offender, according to the damages. On the basis of the above point, the writer of the thesis gives a overall introduction to the problem of duty of care using comparison and verification and tries to clarify the duty of care of the tort law in china.The body of the thesis consists of four parts. And part one is the overview of duty of care. Firstly, it gives the definition of duty of care and defines its position in modern tort law. Secondly, it tells the reasons why duty of care has an important position in modern tort law from three aspects, and meanwhile, it also points the necessity of the study on duty of care.Part two reviews the duty of care in the two main legal systems — continental law legal system and common law legal system. In the countries related to the first system, duty of care, includes the ones in statutory law and the ones in non-statutory law for making up the defects in statutory law. And the thesis mainly discusses the duty of care in non-statutory law, that is, verkehrpflicht (common secure duty of care), which is the judicial production. The establishment of common secure duty of care greatly enriches the forms of offending behaviors, changing the connotation of the duty of care violated by the offending behaviors,and implies the changes in thought of science of law, as well as the innovation in the methodology of science of law. In contrast, the duty of care in common law legal system is the best part in its tort law. The thesis discusses the realization of the theorization of duty of care, the cause of its birth and non-behavior and duty of care.The third part provides the judging criteria of breach of duty of care. There are few studies on the theory of the problem in continental law legal system, While there is ripe theory in common law legal system, which consists of abstract judging criteria and concrete judging criteria. The former includes reasonable man criteria and danger theory criteria and the latter includes custom, usage, law and res ipsa loqitur.The fourth part deals with the construction of the duty of care in the tort law of our country. The theoretical study on the problem in our country is very poor and there is nothing about it in legislation. The writer proposes that there should be three types of duty of care in our tort law: the duty of not violating other people's right and legal benefits, the duty made by law to protect other people and the duty of security guarantee. Of the three types of duty, the first two types are created by the law. But the third type has the greatest vitality and is used in all walks of life. Therefore, it will play a very important role in making up the defects of tort law, realizing the lawful concept that the violated right and legal benefit will be compensated in the greatest degree.The rest of the thesis is the introduction and the supplemental statement, mainly pointing the significance and the necessity of stressing the theoretical study on duty of care.