A Study On Duties In Tort Of Pension Agency

In practice,it is often difficult to judge whether the behavior of pension agencies infringes the rights and interests of the elderly and whether they need to bear legal liability.Pension agencies usually sign service contracts for elderly with the elderly or their guardians,and the contract content usually includes detailed rules of service for the elderly.Whether this content can become the source of duty of care for tort liability becomes a difficult problem.Make tort liabilities as the basis of claims,it is particularly important to construct a theory that can protect the interests of pension of the elderly.First of all,there are two academic viewpoints on the sources of tort duty of care.One holds that liability for breach of contract and liability for tort should be clearly distinguished.Another view is that under certain circumstances,the content of the contract can become the proof of tort liability.In the field of tort of pension agencies,the former may cause the obligee to yield up part of his rights,lead to the difficulty of confirmation of the duty of care and the unreasonable agreement of the contract which makes the liability impossible to be realized.The latter may lag behind the health status of the elderly because of the content of the contract,and cause that the unreasonable content of the contract leads to the contract can not be an effective source of obligations.In order to avoid unreasonable handling of some cases due to the adoption of one of the above two theories,and the particularity of pension service and the existence of its contract,the duty of care in tort should be conditionally derived from the agreement of pension service contract.Secondly,based on the performance of specific cases,the contents of the pension service contract may not meet the actual pension needs.Pension agencies may use contracts to reduce or narrow down the degree and scope of the duty of care,and there are also problems in pension agencies that the content lags behind the actual health status of the elderly due to the continuous implementation of contracts.The scope of the minimum obligation and the minimum obligation stipulated in the contract should be limited to a reasonable extent,and the duty of care in the contract should change with the health status of the elderly under certain conditions.Finally,the sources of exemption grounds of pension agencies are unreasonable.In some cases,pension institutions cite exemption clauses in service contracts for elderly as their exemption grounds to claim that they do not bear liability.Due to the confusion of the status of the exemption clause and the duty of care clause in the pension service contract,when there are unreasonable exemption clauses in the contract,the court may refuse to quote them into tort liability due to the need,and finally adopt the view of distinguishing the sources of liability for breach of contract and for tort.The application of the exemption clauses agreed in the contract in tort may lead to the reduction of the actual service content of the pension agencies,and the exemption clauses reduce the duty of care.Even if the exemption clauses agreed are lower than the legal exemption grounds,the contract may also have the possible to be gambling.It is necessary to distinguish the exemption clauses of the pension service contract from the duty of care clauses to determine the exemption clauses of that pension agencies violating the duty of care,and the two clauses should have different status.Only the duty of care clause can be the source of the tort duty of care,but the exemption clause cannot be the source.The exemption grounds of tort liability of pension agencies should be applicable to the legal grounds for exemption of tort liability,which can be roughly divided into the grounds for not bearing civil liability clearly stipulated by law,reducing liability in accordance with the outdated rules of offset,and other grounds for not bearing liability of pension agencies.