Research On The Guarantee Of Security

This dissertation researches on duty of care regulated by article37of Tort Liability Act of PRC. The mission of the dissertation is to analyze the meaning of paragraph2of the article37and the "corresponding supplementary responsibility". We accomplish this task in five parts, which is organized as follows.The introduction part goes first. We first present the background of this research and problems of interest in this field, which leads to the significance of this research. Then we illustrate the object and scope of this study, as well as the structure and research methods.The first chapter introduces duty of care in some other countries as well as development in our country. Given that duty of care in our country learns from other countries’, this chapter first investigate the theory of the similar obligations in other countries and districts. Then the research of development of China’s duty of care divided into three stages, namely "early referee stage","communique cases and judicial interpretation stage", and "legislative stage". The chapter sums up the difference between duty of care of different countries and districts through referee and doctrine investigation. This paper argues that referee exploration create and develop the duty of care in our tort law act, confirmation in legislation is not the end of the study, we still need further study in the theory of duty of care.The second chapter is devoted to the basic theory of duty of care. Based on the first chapter, this chapter discuss the basic theory of duty of care, including the concept, situation, content, scope of protection, criteria about whether a person fulfill the obligation. This chapter also analyzes the different points on the theory of duty of care. As China’s legislation limite the range of person to bear duty of care, this chapter researches the referee’s point of view and discussed who should be charged with the obligation. The content of duty of care can be vary at different situations, then this chapter only studies the duty of care of hotels and banks.In the third chapter, we study on the constituent elements and the legal consequences of Article37of Tort Liability Act of PRC, focusing on the issue of causation. This chapter starts from the logical structure of Article37, and the properties and their relationship with Article6of Tort Liability Act. The constituent elements of article37include:damage, specific persons behavior, causation, wrongfulness and fault. This chapter analyzes the content and features of the constituent elements of article37, and emphasizes on caustion which is difficult point in this situation and deserve further research.The fourth chapter examins two questions, one is whether the behavior of a third party should waive or reduce liability of the perpetrator, the other is what is the meaning of the "corresponding supplementary liability". This chapter first compare two concepts of "exemptions" and "defenses", then study on the legal effect of the behavior of a third party in China. The behavior of a third party in Article28of Tort Liability Act is one of the circumstances that can waive or reduce liability of the perpetrator. However, according to comparative law, the behavior of a third party are commonly discussed more in the category of causation and cannot be found in other countries’Civil Code, which is limited to certain defense under strict liability with considerable restrictions.