On Omission Of The Special Nature Of Tort Liability

Omission is one kind of Act of tort,which caused by someone who fails to perform particular duty.As social constant development, new forms of omission cases that frequently happening.Such as network infringement,medical infringement,campus infringement and so on.The special tort cases troubled the circles of theory and judiciary practices greatly.With actions compare,omission tort has never got enough attention ,although every country has the definite regulation of the actions for ruling to the law.Such as the theory of duty of care in British and American law,general duty of care in Germany,the theory of duty of care in Japanese.And in our country,acting obligation were only enumerated in "the General Provisions of the Civil Law"and "Law of Responsibility on Rights Violation".Tortuous liability of omission has not been incorporated into a strict and perfected system. In fact,consider from the infringement of the social relationships,action and omission are the same in negative value. So in order to keep abreast of the times,changes of general theory and internal structure of tort law should be made.This paper start with the distinction between action and omission, elaborates on the theory origin,composing element,Acting obligation of the tortuous liability of omission. In the end of this paper,the writer reviews the current legislation and gives some suggestions on tortuous liability of omission.Apart from the introduction and conclusion, the main text is divided into five parts.Section one discusses the relationship of action and omission in order to make a clear definition of tort of omission,including the importance of drawing a line between the two and the method of separation.Section two introduces the theoretic basis of tortuous liability of omission, including philosophic thinking, economic theory and social theory. These three theories strongly support the jurisdiction of tortuous liability of omission.Section three, on the basis of"four prerequisites", analyzes the specific constitutive requirements of tortuous liability---- illegality, fault and causality, which favors to a clearly differentiation of action and omission.Section four discusses the sources of action obligation, which plays a decisive role on the effectiveness of tortuous liability of omission. Although scholars` opinions vary on this issue, most of scholars believe that action obligation originates from the legal provisions and antecedent acts. In order to define action obligation in practice more easily, the writer analyzes two debating opinions on this issue.Section five surveys the approaches to improve legal system the tortuous liability of omission. The writer reviews the current legislation on this system, discusses its shortages and makes some legislative advices.