On Doctor’s Duty Of Care In Chinese Tort Law

With the development of science and technology and the improvement of social productivity, the tort law is changing. Especially in the field of liability of fault, due to objective fault judgment, the existence of the duty to protect the victim’s personal, property safety plays a more and more important role. The duty of care in medical disputes in the doctor’s point of view, tries to provide a new method for judicial practice and theory, to provide guidelines for behavior of rational person. Tort law duty of care and diligence obligations, which belongs to the category of tort, is the cornerstone to determine the fault liability, the core in negligence in tort law.In the world in the legislation of many countries have adopted the duty of the mode of thinking, there are mainly two kinds of patterns: one is to Japan as the representative of the relativism behavior pattern of Germany; two is the strict attention to France as the representative of the obligations established pattern. The former thinks, the duty of care has two different perspectives, namely "element of law" and "fact". The element of law refers to the judge, the judge must under certain circumstances, the defendant whether specific damage to the particular plaintiff and the tort results assume legal obligations. And the duty of the "fact" refers to the specific environment, in fact in the case and the specific case of whether the defendant violated the duty of care. In Germany and Japan, the general duty of care is produced by a specific case out, everyone has to take all necessary and appropriate measures to protect the obligation. And the other one is represented by France highly strict attention to establish the obligation, we will see the attention obligations premise is highly strict statutes.For the attention to determine the way and the method of this paper is that the obligation, legal obligation and obligation should be non statutory notice. By law, regulations and habits, practices constitute a legal obligation, composed of rational behavior of illegal duty. Because in the scope of law any, the law can not cover and the exhaustion of all the circumstances, so, the behavior of provisions of the law does not mean that the behavior is rational. Such as medical negligence is the doctor in the process of implementing medical behavior in violation of the obligations of attention and cause psychological health damage. As the legal obligations of the duty of care is the core of the medical negligence, medical negligence is the premise of the existence of. If we only take doctor behavior is consistent with the standard to judge the law, then the medical negligence is rarely appear.Therefore, this paper defines the concept of duty at the same time, a comprehensive explanation of the key issues of duty of care specialist content, the basis and criteria for judging the ability to pay attention, try to objectively, fairly determining professional negligence, and provide a theoretical basis.