Theory Of Duty Of Care On Tort Law

Duty of care,"the fifth wheel of carriage", has been playing a role on tort law for quite a long time in continental law system and common law system countries. But it hasn’t got enough attention in China. The rapid development of social economy has caused many infringement disputes, which caused great damage to people’s personal and property. In judicial practice, however, various district courts has their own judgements to similar cases, which not only influences the interests of the parties but also against the preciseness of judicial unity. As a result, scholars and lawmakers gradually pay more attention to duty of care. Judicial interpretation, draft tort law and tort liability law all have rules on security obligation, but there still exists a big gap between these rules and the duty of care theory, and related issues is still worthy of our furthur exploration, such as the status of the duty of care in tort law, the functions of it, its relationship with constitutive requirements, and the standards of existance and violation of the duty of care in judicial practice. Duty of care has a core status in tort law, and is applicable to both fault liability and strict liability. Its function mainly reflects in judging the fault elements of tort liability, expanding negative responsibility and balancing legal interests. With the increasing of modern risk, only studying the general duty of care is not enough to cope with the complicated tort behavior, so typed analysis of duty of care becomes an important part in researching theories of duty of care. Classified duty of care adapt to general conditions and typed legislation system in tort liability law. And it is put forward according to different risk, with the characteristics of concretization, high degree, and weak relief. So in specisl field, the content of duty of care should be analyzed respectively. Theory is finally used to direct practice, so how to apply duty of care to judical trical is an inevitable question. Therefore on the basis of existing duty of care and standards of violation, and using cases to explain its specific application, this thses may provide a guidance for judges to hear cases.