On The Tort Law Of General Safety Duty Of Care

This article focuses on the general obligation of security care and tries to reflect from critical perspective on the main stream doctrine about the nature of it through the methodology of history, comparison, jurisprudence and case study, which purports to deal with some fundamental studies for the construction of the system, based on which this article offers some legislation suggestions for the design of the relative system in the Chinese future tort law and shows the prospects for the development of this system in the future.This article is divided into five parts: Part I is the formation and the development of the general obligation of security care; Part II gives a comparative study on it; Part III speculates on the jurisprudence of this system; Part IV offers an analysis on the system of the obligation; Part V shows some enlightenment this obligation has as for Chinese tort law.Part I mainly gives an introduction of the history of the general obligation of security care, i.e., the whole historical process of the system, pointing out that this general obligation stems from German tort law and was a product of judge-made law that deeply influenced the legislation in many countries on the indirect tort of nonfeasance; Then this article analyzes the reasons why this system formed and developed from the angle of legislative technique and that of social reality and thus discloses that the general danger brought about by the social evolution and the lack of provision on the tort of nonfeasance both caused the birth of this system.Part II focuses on the comparative study of the two major legal systems and emphasized the formation of the system in Germany, its originating country. The three cases in Germany that bore great importance for the formation of the system help us better understand the system. And this part suggests that the common background of social life had made the countries from the two major legal systems legislated on the same system of the general obligation by varied means, although gaps in legal cultures and ways of thinking existed between them and in most cases the system was not embodied in the codes of the countries. Finally, this part addresses on the laws, regulations and judicial interpretations in China relating to this system and considers the promulgation of The Judicial Interpretation on the Compensation of Personal Damages as just a starting point of the transplant of the system of...