The Study Of Tortious Liability Of Mission

For reasons of philosophy, society and law, actors don't need to undertake tort liability for his/her omission in history, and the study on tort liability law focus only on acting obligation. But in modern society, tortious liability of omission have been accepted universally in order to coordinate the relationship between the freedom to act and the rights for protection. However, accompanied by omission cases that frequently happening in practice, the theories nowadays cannot explain the questions about tortious liability of omission and supply theoretical support for legislation and judiciary practices, and many basic theoretical questions still need to be further studied. Looking at the system of civil law in china, we will find that there is no specific provision about tortious liability of omission, only embodied in the general clauses of tortious liability and the relative provisions of civil obligation. Therefore, the author use synthetically the methods of historical analyses, comparative analyses and empirical analyses to construct the relative theories of tortious liability of omission and seek to advance some legal advises which accord with our country's practice.The article consisted of five parts and contain about 30 thousands words Besides preface.The preface formulates the origin, the significance of this thesis's theme, and research method, indicate that the current theories could no longer account for reasonably tortious liability of omission and supply theoretical support for legislation and judiciary practices.In part one, outline of tortious liability of omission. this article firstly discuss the concept of tortious liability of omission, points out that "acting obligation" and "omission" are its key elements, tortious liability of omission means those who bear specific acting obligation do not fulfill obligations actively for negligence, so they should be obligated to body or wealth harm. Basis on this, it represents defining methods and meaning between positive infringement and omission, and also demonstrates the validity of tortious liability of omission from the aspects of philosophic thinking, theory of controlling danger, principle of good faith and principle of public order and moral.In part two, the comparative survey of tortious liability of omission. Whether in continental legal system or Anglo-American Legal System, omission have go through the development from irresponsibility to limited liability, on account of the difference of the legal tradition and social perception, the development model and the theories have been different, but the principle that is used to deal with the question of omission by confirming the duty and breach, is coherent as a whole. Surveying tort law in other countries, the source of acting obligation have gradually converge and scope of tortious liability of omission is broadening. As the theory of safeguard duty have been widely established in most of countries, the trend that tortious liability of omission begin to blend in general clause have existed in some country.In part three, the theoretical inquiry of tortious liability of omission. This part contains these content about the source of the liability, composing elements, and the form of liability. Acting obligation is the origin of tortious liability of omission, the article comb the current theories and come to a conclusion that acting obligation could be resulting from legal regulations, contract, antecedent actions, special relationship, principle of good faith and the principle of public order and moral. the existence and breach of acting obligation is decisive for the establishing of tortious liability of omission, acting obligation have a estimating function on fault, wrongfulness, causality of tortious liability of omission. Fault and wrongfulness have common criteria for judgement, whether breach the objective duty of care. Therefore, worngfulness should not be one of composing elements of tortious liability of omission, the traditional composing elements of positive infrigemens should not be used to the former, and should be restructured on the basis of features of tortious liability of omission. The article assumes that the composing elements of tortious liability of omission should include four aspects: breach of acting obligation and omission, fault, injurious consequences and the causality, and chiefly discusses its differences from positive infrigement. In the form of liability, those who imposed upon tortious liability of omission may take on joint and several liability, shared liability and supplementary liability in different circumstances. At last the paper primarily discusses the apply of supplementary liability in tortious liability of omission.In part four, the demonstrational analyses of tortious liability of omission. In reality, omission infringement is very complicated because it often contains natural factor, the condition of casualty, the actions of the third party that involved in it, so there will be different forms which will complicate legal relation and directly effect the scope of liability of infiinger. Thus, a appropriate standard that classify tort is critical to sum up accountability rule of omission in different conditions. The artical divides omission infringement into three types: omission infringement with no other factors involved, omission infringement with natural factors or the condition of casualty and omission infringement with the act of the third party.In part five, the legislative proposal of tortious liability of omission. The article first combs the legal regulations about tortious liability of omission in our country, indicates that there is no specific provision about tortious liability of omission, only embodied in the general clauses of tortious liability and the relative provisions of civil obligation. Furthermore, based on mirroring foreign legislative patterns and analyzing the draft of tort law in our country, the author think that the tort law should adopt the pattern of "general clauses plus limited list". tort liability law should set up general clause of tortious liability of omission, classify omission infringement and should concretely list the types of omission infringement that existed in legislation and practice.