论德国侵权法上的一般注意义务——以司法判例为主线的考察

On General Duty of Care in German Delicts Law

一般注意义务由德国民庭法官依判例而创设。一般注意义务以“行为定位”为思考模式,具有危险回避和危险防免等功能。随着当代社会危险的日益增多,其适用范围也不断拓展,大有成为德国侵权法上“第四小总则”之趋势,对我国侵权法发展不无借鉴意义。

German delicts law developed the General Duty of Care by the civil court judges, and which will become the Forth General Rule in delicts law. The types and objects of the General Duty of Care has been shaped through the accumulation of relative cases. The General Duty of Care has the functions of avoiding and preventing the risks, and can be used as an appropriate countermeasure against the risks in dangerous industrial society.