The Study Of Affirmative Duty To Act In Tort Law

Traditionally Torts Law has always focused on punishment of Affirmative Duty to Act, which has only punished Negative Nonfeasance Torts on a very special occasion, so with the appearance of "Negative Nonfeasance Torts" challenges the traditional law. With the legislative omission and practice of law, the society demands more exact articles of law. The contradiction between individual freedom and social order, the short of theory of studies, and the desire of truth require to discuss the meaning of Affirmative Duty to Act and draw a clear line between them. The paper, borrowing the theory of "sponsor" form Criminal Law, depends on the different countries' articles of Torts Laws and legal precedents to analyse the origin of Affirmative Duty to Act and make a typical suggestion. The author think the origin of Affirmative Duty to Act is positive duty in special social relationships, which protects special legal interests and prevent some particular harmful consequences. On this basis, depended on the true meaning of Affirmative Duty to Act, the paper divide the acts into Protective Duty which directly protects others' legal interests, and Controlling Duty which controls harmful origin. At the same time, the duties can be divided into different types according to social relationships ,social roles and social functions. The paper,according to the current theories studies and legislation, give a typical suggestion of articles of Affirmative Duty to Act to the China Torts Law.