The Research On Duty Of Care In The Negligence Tort

A duty of care is the important concept of negligence tort law. In countries of Anglo-American law system in negligence Tort, the existence of a duty of care is composed the first condition of negligence Tort. It defines the basic scope tort liability for negligence. In civil law countries, although in a duty of care in tort system negligence did not rise to behavior constitutions and responsibility, but the elements of status Court through case accepted gradually and pay more attention to the duty of care theory, legislation through some list of typification makes a duty of care in practice have a lot of applicable. This paperduty of care in the negligence Tort as the research objectls divided into five parts:In the first part of duty of care were described in detail the rationality exists negligence Tort thinking. Firstly the duty of care concept is defined, The author thinks that the concept of a duty of care should be clear for:refers to the specific circumstances which actor must abide by the code of conduct or reasonable measures should be taken to the obligations. Analyzes the duty of care and negligence (the relationship between fault);Secondly, this paper discusses the duty of care of negligence tort system function and value, The author thinks that the duty of care more extensive scope of protection. Tort law it is not just from essentially a relief and extinguish the inferno of law, but more should be norms of behavior, it will solve method of the primary task is to act's behavior and freedom is defined. Between Finally, the traditional continental absolute duty of care and analysis from infringement notice obligations shall fault transition to the relativity absolute standard criteria for recognitionThe second part mainly analyses the fault infringement of duty of care legislation and practice status quo, overall the problems are:first, a duty of care and not rise to negligence constitutes a piece and responsibility infringement composed of position, in that note elements of obligation of easy and fault want to confusion, into mutual circular arguments logic adversity; Second, our country's legislation and practice of duty of care is the absolute standard; Finally, due to negligence academic infringement constitutions and responsibility element of the duty of care no distinction, the effects are easy to use, and the crisscross of different criteria, not concretized form system.The third part emphatically resolve a duty of care in our negligence of infringing system conformity structure. The author demonstrates negligence tort constitutions and responsibility, through the different elements of the traditional elements of fault infringement, establish the controversy and limited to a duty of care as the core constituents standards, the existence of a duty of care, duty of care violation and damage results, the causal relationships; In principle, the imputation of actor's to change the traditional psychological can act to behavior decried can accuse sex; Finally the fault of the duty of care context tort liability constitutions, key considerations in responsibility constitute the negligence on the role and position.The fourth part mainly solve negligence in tort constitutions and violating the duty of care of existing problem determination standards. Establish a legal obligation+concrete types general judgment rules (predictability, nearest-neighbor sex and fairness, justice and rationality of infringing note that negligence) mode and the obligations exist in the sense of standard specification +the specifications (specific meaning)+economic benefit costs on standard standard "gradual" model of the duty of care of decision criteria. Established the typification of standard duty of care, and expounds new fault tort mode note obligation theory of constraints reflect.The fifth part looked at the fault of the duty of care put forward under the mode of infringement, specific introduces several types of fault infringement duty of care content.