Understanding And Application Of "Verkehrspflicht"

Tort Liability Law of the People’s Republic of China(hereinafter referred to as the“Chinese Tort Liability Law”)came into force in2010. Article37of the lawregulates“safeguard obligation” of managers of public places and organizers of massactivities. They shall bear tort liability for damage of others arising from their failureto fulfill the safeguard obligation. Before the enacting ofChinese Tort Liability Law,thesafeguard obligation has alreadybeen regulated in article6of Interpretation of theSupreme People’s Court on Certain Issues Concerning the Application of Law inTrying Cases Involving Compensation for Personal Damage.“Verkehrspflicht”(in German) is a special concept in German Tort Law. At thebeginning of its development,“Verkehrspflicht” served as the tool of expandingliability for omissions or indirect infringements. With the development of technologyand society, the risks in daily life have rapidly increased. Meanwhile, the scope of“Verkehrspflicht” has gradually expanded. After many years of development aprinciple was summarized from the judgments in Germany:“The person who hascaused a danger is obligated to take all the necessary and reasonable measures toavoid damage of others.” This principle stands for that the “Verkehrspflicht” hasbecome a general concept in German Tort Law system.The safeguard obligation in Chinese Tort Liability Law is obviously influencedby the “Verkehrspflicht”. They have several similarities in certain aspects. Thereforemany Chinese scholars treat them as the same concept. But when weobserve them carefully, many differences can be found. There are a lot of importantquestions about the “Verkehrspflicht”, e.g. its relationship with the constitutiverequirements of Torts.This thesis discusses the “Verkehrspflicht” in the context of Chinese TortLiability Law. It is divided into two parts. From the point of legal dogmatic, the firstpart reveals the relationship between the “Verkehrspflicht” and the constitutiverequirements of Torts. The second part deals with the application of the“Verkehrspflicht”. The important principles for the judgment of the “Verkehrspflicht”are stated in this part.