Research On The Duty To Rescue Of Tort Law

Whether someone who fail to rescue the other under risk is liable in law or not? Mostcountries of Civil Law have stipulated one’s general duty to rescue the victim in the criminallaw, while some other countries have stipulated it in civil law. However, Owing to CommonLaw countries’ long-term adhering to the no duty to rescue rule, the general duty to rescue hasalways been negative in legislation, not until near modern times it has changed a bit. So far, asto the general duty to rescue it has formed two distinct instance of legislation worldwide. InChina, as a result of the fierce debate in penal jurisprudence on whether to set one’s no-actionwhen seeing others in danger as a crime, the general duty to rescue has drawn a lot ofattention. In recent years, with scholars of civil law science gradually investigating more onnonfeasance infringement, the duty to rescue has become a study subject of tort law. Thecurrent research actuality of duty to rescue in tort law can neither offer any guidance to civilverdict among numerous and complicated individual inaction cases, nor can it react positivelyto the hard choice on whether to make one’s inaction a crime in penal jurisprudence. Thewhole public opinion is showing one-sided emotion incline one’s inaction to rescue. However,the author of this paper intends to take the same social emotion but also to avoid been misled,and finally to find a scientific and rational legislation choice which suits the condition of ourcountry. Except of the introduction, the paper can be divided into five chapters.As to the first chapter, it basically expounds on the duty to rescue, which is the coreissue of the paper. As the content of duty to rescue is the precondition of establishing a fairand reasonable system of duty to rescue, this paper in the first place definitely restrict thesubject investigated at general subject. After the strict definition of the subject of rescue, thesituation which will cause the duty to rescue then has become the key issue. Generallyspeaking, the duty to rescue arises when someone was under risk. As the cognizance of therisk, this paper adopts a single standard which concerns both subject and object. Namely,only if we are fully aware that other’s life and physical health are suffering emergentmenace and significant injury, and after we make a careful judgment and we believe we canrescue and do no harm to ourselves or others, then there will arise the duty to rescue. Likeother duty, the duty to rescue is in itself a result of the policy considering and discussing,However, after a careful analysis we will find the duty to rescue still has some different particularity. Therefore, to regard the duty to rescue in the tort law as independence is notonly necessary but feasible as well, it is also of crucial importance to the development of allthe whole duty system. To establish its position in the tort law and become people’s standardof behavior; the duty to rescue is subjected to have definite theory support. The author of thepaper thinks the social joint theory of Duignit, the reasonable egoism of Feuerbach and themutualism theory of Kropotkin all share the social cooperation concepts, which best explainthe duty to rescue in tort law.The second chapter surrounds the theory and instance of legislation in all nations andregions across the world. It probes the duty to rescue in compares. Most countries of CivilLaw have established Bad Samaritan Law in criminal law and the legislation mode that oneshould assume general duty to rescue. However, due to the lack of Good Samaritan Law,people may have various worry while rescuing others, which severely affects the duty torescue to come into law. Although the French Civil Laws is also like this, the Frenchman didformed some famous case of court decisions in juridical practice, which produced greatinfluence on other continental nations. Anglo-American law system has gradually changedtheir standpoint on the general duty to rescue from complete negation to exceptionalacceptance, although in a very slow process. However in the past or now, no duty to rescuerule has always been existed in the Anglo-American law system. The exceptional case of noduty to rescue rule, strictly speaking, does not refer to all the states instituting Bad SamaritanLaw, instead it refers to the their explanation and application of the theory of special relation.In the meanwhile, the legislation normal form of Good Samaritan Law in American law ishighly praised by the later generation.In the third chapter, the paper explores the form path of duty to rescue in tort law. Asto the issue on how to design the duty to rescue, opinions divided. Some think the duty torescue should be legalized while others oppose the idea. Indeed, there are many disputes anddivergences, but the issue is bound to be around the relationship between morality and law,which is the oldest issue of legal philosophy. Though this proposition is not the whole part ofthe discussion in the legalization of duty to rescue, it is the fundamental precondition which isnecessary to be solved. This paper holds the opinion that although morality is hard to defineyet possible to communicate, and morality possesses hierarchy, it is different from moralsense. The practice of one to rescue others may be not out of altruism, however, One’ssympathy and the feeling of humanism are of great importance in his/her decision to rescue. According to the classification of morality hierarchy, the rescue among general subject shouldnot belong to the minimal morality. Therefore, to execute legal compulsion must be morecautious. Of course, it doesn’t mean all rescues by strangers can not be executed by legalcompulsion, for example, some elementary morality related to human beings’ socialsustainment should be executed by legal compulsion, otherwise stable social order will notform, which is the very existing soil of Anglo-American law system.In the fourth chapter, the paper conducts empirical research on the general duty torescue in tort law. In the background of legal integration, the system of not rescue equalingtort is almost no longer the issue of whether morality can be simply transformed into the forceof law, and we can not avoid the operational effect of tort law. The paper takes the actualsituation of America society as original version and pays close attention to the formation ofrescue and not rescue mechanisms. As we find that in those American states that institutedBad Samaritan Law, the legalization of duty to rescue didn’t achieve the anticipatory socialeffect, increase of rescuing people. Instead, they paid a substantial cost for that. That’sbecause the forced duty to rescue not only greatly reduces the altruism, but depresses thesavers’ enthusiasm as well. Furthermore, it requires the public more duty to notice. It will notonly increase the risk of saver but may affect the savers’ cooperation on the afterwardsinvestigation. For this reason, this paper points out that the duty to rescue rule should adjustits target instead of simply increasing the aiding people, it should increase the quality andlevel of rescue. As to the analysis of causes of the influence of the duty to rescue rule, thereare substantial problems in both sections of law-abiding and administration of law. As thelaw-abiding，the legalization of the duty to rescue take little consideration of the influence ofthe social choices among different ages, genders and social classes, it even the possible risksbrought by the saving behaviors. In a sense, it doesn’t match with the humanity requirementand logic of common sense common feeling and common reason. In the process ofadministration of law, the court surly will meet three problems of offender, subjective faultand the hard causality cognizance, which exactly explain the reason why there were fewrelative judicial precedent in the juridical practice.The fifth chapter puts forward the idea of considering the duty to rescue in a restrictiveway after thinking about our nation’s reality. Today, like China economic law experienced inthe past, the social morality of China is returning to its nature after a illusory boom. However,this doesn’t mean that we should give loose to the vicious phenomena, neither should we the harm to public morality by individual morality. The modern society should become more andmore rational and tolerant on the basis of coexistent contradiction, and choose more favorablemanners to guide and control the situation. Although the appearance of a stranger society doesrequire the formulation of proper law, it may be taken into deep consideration of what law totake and how to practice the law by legislators. This paper takes the view that the legislationscheme of Anglo-American law system better fits our country; in especial we shouldintroduce the special relation people into our nation’s legislation. On the basis of admitting theduty to rescue in some special circumstances, other problems may be handed to the GoodSamaritan Law. The Good Samaritan Law in China may not be formulated in a new a way,we can simply complete it by lowering the standard of brave act for a just cause. We suggestthat the practicing range of the law on brave act for a just cause should be enlarged to all thepeople who rescue others under risk, by which we can solve the problems brought by theGood Samaritan Law.