The Study Of Tortious Liability Of Missions

In recent years, the unpeaceful factors in public service trades have greatly damaged the personal rights and the property rights of consumers; as a result, the increase of such cases arouses the author's contemplation of the tort problems caused by not fulfilling one's specified commission liability. And tortious conduct of omissions uses commission liability as its premise, so it has its features different from tortious conduct. In the paper, starting out with the concept and distinguishing features of tortious liability of omissions, with the worldwide relative research as the background, the author probes into the significance and principles of establishing commission liability and the various forms of commission liability, and what's more, the conditions of tortious liability of omissions from the aspect of its conditions. And in the end, the author presents her previous on its stipulation in Code of Civil Law in China.This paper consists of four sections.Section one includes the concept, distinguishing features and the worldwide research of tortious liability of omissions. The author thinks that most of our scholars probe into tort liability from the angle of errors instead of acts. And seemingly, tortious liability and tortious liability of omissions are different in action manners, but more importantly, in obligations broken, which leads to the forming of the distinguishing characters of tortious liability of omissions. So, from the aspect of commission liability, the author probes into the concept and the distinguishing features of tortious liability of omissions, and she thinks that omission feasant must undertake specified commission liability, which isn't so common as omission liability, but is existing on the basis of the specified relationship. While feasant leads to damage by directly infringing the other's benefits, omission feasant does it by failing to fulfill his obligations, so this is a kind of passive manner, and finally, from the aspect of history, economy, philosophy and law, the author discusses the reason why the study of tortious liability of omissions is much later than tortious liability of commission, and lists the worldwide research outcomes with the hope that they can be of some help to our research.Section two includes the premise of tortious liability of omissions: the establishment of commission liability. Since to establish commission liability is to set a limit to human freedom, the stipulation of human freedom in Civil Law, aiming at protecting it, must go with some reason and significance for sure. So naturally, the author inquires into the significance of establishing commission liability in ethics, economics, sociology and politics. Although it is greatly significant, the establishment must follow certain principles, or else, commission liability may conversely stifle human freedom, and even prevent our society from progressing. To function as the principles, commission liability must be inevitable and proper in essence and legal in form. In other words, commission liability itself must have rationality and be lawful regulations rooted in real demands for it, instead of the legislators' unscrupulous acts. And in the end, the forms of commission liability are discussed. Commission liability is undertaken on the basis of the lawful stipulation, the contractual relationship, the service relationship, the preceding behavior and public orders and good customs. Among which commission liability based on service relationships is considered contractual obligation by some scholars and its breaking comprises liability for breach of contract instead of tort liability, while the author considers it tort liability. It exists by itself, accompanying inevitably the existence of one party providing the service, and it involves all the people the service reaches instead of just the contract makers. The frequently controversial point is commission liability undertaken based on preceding behaviors and public orders and good customs, which concerns the relationship between mora...