The Research On Duty Of Care In Tort Of Negligence

With development of the age, there exist more and more new legal problems.For instance, the actor involving in the business or social activity cause others’ losein person or property or make the victim easier to be infringed by the third partyowing to the failing to take active protective measures. In this circumstance, shouldthe actor be liable for tort of negligence? In the cases of our country, courts holddifferent opinions on the forgoing problems which make the verdicts incontradiction. The fundamental reason of the forgoing problem is that the courtsdecide whether the actor owe the duty of care to others by different standards. Thisarticle will analyze the duty of care in our tort law and compare it with the duty ofcare in the main countries in common law system and civil law system and try togive some initial ideas on establishment of duty of care in our tort law.Chapter1of this article analyzes the main feature of duty of care in tort law asan initial concept of duty of care. The meaning of duty of care in tort law includesthe following four factors:(1) Duty of care is stipulated in the law which includesbut not limited to statute and precedent (2) Duty of care aims to protect others fromlose (3) Duty of care asks actor to do or not to do something (4) Duty of care isdecided by objective standard. The second half of Chapter1analyzes the relationbetween duty of care and negligence and nonfeasance tort respectively to make thestatus of duty of care in tort of negligence and nonfeasance tort clear.Chapter2of this article compares the development of duty of care in main countries in common law system and that in civil law system and concludes thatmain countries in common law system or civil law system develop the theory ofgeneral duty of care by means of precedent which is open, relative and can make upthe loophole in the law.The chapter3of this article analyzes the duty of care in our country and tries togive some initial ideas on establishment of duty of care in our tort law. This articleconcludes that only duty of care of actor mainly involving in business or havingspecial profession not general duty of care can be found in stature and judicialinterpretation of the Supreme Court in our tort law and tries to give some initialideas on establishment of general duty of care which will be helpful in our tort law.