On The Duty Of Care In Tort Law

The duty of care is the perpetrator in order to avoid damage to the legitimate interests of others, and commitment to make their actions consistent with some reasonable objective criteria of an act or omission obligations. Duty of care as an important concept in the two legal systems tort law is to determine the key factors of negligence, and perfect the negligence determination system of tort law has an important value. In this paper, the historical analysis, comparative analysis and empirical analysis and other research methods, in order to achieve balance between freedom and security of tort value as well as balance among the perpetrator, the victim and society, expound the tort law duty of care on the basis of theoretical knowledge, examined the relevant provisions of the two legal systems national tort law duty of care, and analysis of tort law duty of care legislative and judicial situations and existing problems, finally, deal with the problems put forward specific proposals to improve our tort law duty of care.Besides the introduction and conclusion, there are four parts in this body.The first part introduces the basic theory of the duty of care in tort. Through analysis special relationship theory, pattern behavior theory, rule of conduct theory, combination of law and fact theory of the nature of the duty of care, and discriminate other related concepts, and then reach the point of the concept of duty of care. Through inspect the special relationship of the duty of care in tort to define the content and scope of the duty of care. Through analysis the value of duty of care in identified negligence tort, make up for the loopholes in the law, balance the interests of all parties, recognizing the importance of the duty of care in negligence.The second part mainly examines the two big legal systems on tort law duty of care. Through respectively examine the related theory of Anglo-American law system and continental law system, and determine whether there is a duty of care standard and determine whether to violate the duty of care standard, to elaborate the two big legal system of tort law duty of care on the related theory and the content of decision criteria of duty of care. Through comparative analysis the duty of care in two legal systems tort law, found the difference.The third part mainly analyzes the present situation of the duty of care in the tort law in our country. Expand analyzed from levels of legislative and judicial, analysis current situation of the legislation of our country from angles of law and judicial interpretation in legislation aspect, analysis the evolution process and current situation of the case of duty of care in judicial aspect. And on the basis of the analysis put forward the problem in legislation and judicial practice of our country tort law duty of care which need to solve.The fourth part mainly proposes suggestions for improvement of China’s tort law duty of care. Aiming at the problems in the legislation and judicial practice, firstly through established relativism of duty of care and adopted objective fault theory to lay a solid foundation for perfecting the whole system. Secondly use "general combined with typed" legislative model and refer to the case law system in Anglo-American law system in order to perfect legislation system. On this basis further clarify the duty of care criteria and bring the duty of care into the constitutive requirements of tort liability.