Studies On The Omission Tort

Omission is a tortuous conduction that person not to perform or not appropriate to perform the duty to act, leading to others as a personal injury or loss of property infringement. The traditional tort law mainly focused on act, and omission does not hold a dominant position in both two legal family's tort law. And the traditional as tort, the omission's fault, causation, and unlawfulness, is quite different from the act. This paper is divided into seven chapters to discuss the theory of omission.The chapter one mainly focuses on the basic theory of omission. First author explained the concept of related; then discussed the nature of omission. As well as studied the fault, causation and the particularity of the illegality of omission in this part.The chapter two mainly discussed the theoretical basis of omission. It is including as follows, the personal freedom of philosophic theory, legal theory about moral obligation, social community theory.The chapter three mainly discussed the basis of omission's liability, such as, contract, previously dangerous behavior, voluntary commitment behavior, specific profession and so on.The chapter four mainly discussed the constituents of omission. It requires the duty to act; damage; illegality; causation, as well as fault. Because the judgments on fault and illegality are often intertwined one, so sometimes fault do not emphasized alone.The chapter five mainly discussed the duty to safeguard security and other duty to act of China's "tort liability law". In this part, the author discusses two different models on the legislation of duty to act, one model is "safeguard security and other duty to act", and another model is "safeguard security equal to other duty to act", the author approve of the former model.The chapter six mainly focused on the omissions liability of<PRC's Tort Liability Law>, such as the tortious liability of ground construction, the tortious liability of violation the duty to safeguard security, the omissions liability of educational institutions, the tortious liability of violation the duty to illustration of medical personnel, the omissions liability of network servers, and so on.The chapter seven is the conclusion of this paper. After summarize the whole paper, the author put up his own opinions, which is the range of duty to act, should be expanded of our country's tort law, but the author doesn't agree with the way of the general rule on it. Because it may restrains people's legal freedom greatly.