| 6 of the judicial interpretation of supreme people’s court on compensation for personal injury has brought the theory of duty of care derived from German cases into Chinese Law. Such importation is of some significance for our judicial practice to resolve the difficulty it faces concerning liability for omissions and indirect infringement.Although this theory can crystallize 106(2) of General Principles of the Civil Law on the problem of duty of act, such problem is not the urgent difficulty faced by our judicial practice. Firstly, 106(2) of General Principles of the Civil Law has not excluded the liability for omissions or indirect infringement. Secondly, the origins of duties of act are not limited to the special provisions of legislation according to our theory. Thirdly, in the typical cases as the background of such importation, courts have not ruled such cases on the absence of duty.In fact, it is the structural feature of omission and indirect infringement that troubles our courts. That is to say, there are often intervening acts of third parties or victims before the occurrence of the damage, and such intervening acts are the direct causes of the damage. This feature has produced the difficulty on the problem of causation.The duty of care can in some extent resolve the hard problem of causation. If the duty is to protect the person within its protective scope from infringed by a third party, or to prevent a third party within its controlling scope from infringing others, then once such duty is breached, the requisite of causation is also satisfied. On the other hand, if the duty has nothing to do with the act of a third party, then whether the causation between the conduct breaching the duty and the damage is interrupted or not, cannot be judged by whether such duty is breached or not.14 of the Draft of Tort Liability Law (proposed for the second discussion) has not taken into account and prepared for the various circumstances of intervening acts of third parties, has denied in general the existing space of liability for indirect infringement, and will bring about serious negative influence. |
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