Research On The Duty Of Care Of The Tort Law

With the increase of the risk of various social activities and human’s need of safety, the issue ofsafety has drawn social attention and become an important task of the research of tort law. Duty of careappeared in very early time in other countries’ history. The law during the Rome’s time has accordedthat every resident of a building has the responsibility to assure others’ traffic safety. Until2003, theduty of safety protection, which is created on the basis of the duty of care in Germany, first appears inthe Explanation about Certain Legal Questions on Personal Damage Compensation Cases promulgatedby the People’s Supreme Court. And the article37of the Tort Law of the People’s Republic of Chinaissued in2009has more definite provision: The manager of a public venue such as hotel, shoppingcenter, bank, station or entertainment place or the organizer of a mass activity shall assume the tortliability for any harm caused to another person as the result of his failure to fulfill the duty of safetyprotection. Although our nation has definite rule of the duty of safety protection, compared with othercountries’ relevant theory, it still has many problems, such as comparatively abstract concept, thelimited scope of application, undefined scope of liability, weak operability and so on. So it is of greatsignificance to discuss and do some research on those issues.This thesis mainly discusses the duty of safety protection in our nation from the respective of thearticle37of the Tort Law of the People’s Republic of China. The first part aims to clear the source,concept, nature and characters of the duty of safety protection in our nation through carding thedevelopment vein of duty of care and its nation and characters in other countries. The second partfocuses on the constitutive requirements of liability of the duty of care. When a person’s action meets allthe following conditions he must bear the responsibility of compensation: he has the duty of care in law;he actually failed to comply with his duty,; his deed does do harm to another person; and it has causalassociation between the deed and the harm. The third part mostly discusses the doctrine of liabilityfixation of the duty of care. It points that the duty of care shall apply to the principle of fault liabilitywhile the judge of it adopts doctrine of presumption. The fourth part concentrates on the tort liability.After researching on the theory and application of supplementary liability, we may find that there aremany disadvantages to ask the manager or the organizer to bear supplementary liability when the harmis directly caused by the third party. This thesis holds that it will be more reasonable to ask obligor andinflicter to bear proportional liability.