论在侵权法中确立注意义务的可能性

On the Possibilities of Duty of Care's Establishment in Tort Law

注意义务理论符合现代社会以人为本的理念,它既能保障行为人的积极性和创造性又能给予行为人因违反合理的注意义务而给他人带来的损害以合理的补偿,在现代侵权法上占有举足轻重的地位,我国侵权法理应确立。大陆法系各国侵权司法实践中已被证明科学的一般安全注意义务理论,我国的侵权立法建议、立法草案以及已在各级法院审判实践中适用的安全保障义务都表明注意义务在我国侵权法中确立并实践完全具有可能性。

Duty of care is in coincidence with the concept which is that the development of modem society should be based on human itself. It should not only guarantee people＇s enthusiasm and creativity of their behaviors, but also guarantee the reasonable compensation for the damage caused by the breach of rational duty of care. Duty of care is vital in the modem tort law which should be established in the tort law of China. The theory of common security duty of care （Verkehrsplichten） has already been proved scientific during the judicial practice of tort law by the countries of the Continental law legal system, and now in China the legislation of tort law has been suggested and it＇s draft has been passed, meanwhile the duty of security guarantee has been put into trial practice in all the courts throughout the country. All the facts in the above tell us the great possibilities to establish and effect duty of care in the tort law. of China.