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Not As Tort Liability Study

Posted on:2011-04-03Degree:MasterType:Thesis
Country:ChinaCandidate:H LiuFull Text:PDF
GTID:2206360305498194Subject:Law
Abstract/Summary:PDF Full Text Request
Tortuous liability of omission refers to the liability caused by omission. Historically omission did not be regarded the cause of tortuous liability in advantage of no duty rules. However, by the development of society, tortuous liability of omission has been gradually and limitedly acknowledged by tort laws of different countries to enlarge protections and reimbursement to victim, and thus become the part of tort law that develops rapidly. In this dissertation, I adopted an integrated way of study, which embraces jurisprudence, comparison of law to make a study of the theory of tortuous liability of omission. This dissertation consists of five chapters.In chapter one, tortuous liability of omission is theoretically outlined. The concept, development and theoretical basis are analyzed in this chapter. I make clear that tortuous liability of omission is developed as exception of no duty rules. The core parts of tortuous liability of omission are acting obligation and omission—its manner of acting. And rightness of tortuous liability of omission is based on philosophic theory, danger controlling theory and the doctrine of public order and moral. The doctrine of fault shall be employed as the doctrine of liability fixation of tortuous liability of omission. In this way, the personal liberty is protected and also the one with acting obligation is supervised to act accordingly to exert the guarding function of tort law.A comparison of the tortuous liability of omission is made in chapter two. By the analysis of the development and present of tortuous liability of omission in German, French, Japan, British and United States, I concluded that both of the two legal systems enlarge the scope of acting obligation by cases, though by different manner. In French, a general duty of care is acknowledged by case law; in German and Japan, the acting obligation is limited to the scope of Verkenhrspflicht and the obligation of safety care; in Anglo-American legal system, the case law has make clear that the acting obligation exits in certain relationships which is clarified by case law too.The specialty of tortuous liability of omission is studied in chapter three, which falls into two parts:acting obligation and causality. The source of acting obligation consists of legal regulation, antecedent actions, special relationship and contract. I pointed out that the nebenpflicht concurred by contract is the source of acting obligation while the principle of good faith and public order shall not be taken as the source. Another specialty of tortuous liability of omission is its causality. The causality should be judged by "but for". Judging by general experience, if the obligator committed the obligation, the damage can be avoided or reduced, and then causality between omission and damage can be concluded.In chapter four, tortuous liability of omission is studied systemically, including composing elements, form of liability, range of compensation and manner of liability. I pointed out in this chapter that the three composing element theory should be taken. The form of liability can be divided into direct liability and complementary liability in accordance to the interference of a third party. If there is no third party, the obligator should take direct liability, while if there is, the obligator takes complementary liability.In chapter five the focus of study returns to the situation of our country. I made an summary of the regulations on tortuous liability of omission, especially the newly released "Law of Tortuous Liability" and indicated that the general clause of "Law of Tortuous Liability" failed to expressly include tortuous liability of omission into its range. And this may limit recognition of tortuous liability of omission in judicial practice. My suggestion is that the distinction of action and omission shall be made in general clause. Combined with the limited list, the system of tortuous liability of omission could be constructed.
Keywords/Search Tags:tortuous liability of omission, acting obligation, causality, fault
PDF Full Text Request
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