A Study On The Omission Of Torts Liability In Tort Law

In the modern society, among a large number of civil tort cases, the vast majority of civil tort is produced by activity, the behavior causing the tort responsibility, in addition to the positive behavior; still include negative behavior that is omission. The omission of torts is the person who has the ability to perform obligations does not fulfill their duty, damages the rights of others, harm the interests; Simply speaking, the omission of torts is the person who should do something but do not. With the progress and development of the society, and the expansion of the new relationship of rights and obligations, in violation of the obligations activity to the omission of torts case reports are often seen in newspaper, all sorts of new forms of the omission of torts emerge in endlessly, such as hotel shall notify the guest but did not when fire; take the friends’children to play, the child fall into water, not for salvage or idle in the salvage, etc. Compared that the way of the implementation of the civil tort imputation cognizance and relatively easy, due to the lack of in-depth theoretical discussion on the omission of torts, coupled with lack of operable laws, leads to the omission of torts produces a lot of controversy in practical processing. Under what circumstances, should make the omission people bear tort liability, which involve moral, freedom and causal relationship and various factors, puts forward the new problem for the theory, which is also an important topic in tort liability law in many countries. Countries’tort laws are more and more emphasis on the protection of the victim; take a variety of ways to solve the problem of the omission of torts, whose expansion becomes one of the development trends of tort law. Therefore, clarify the omission of torts responsibility connotation, essence and theory, is good to the cognizance and imputation of the omission of torts responsibility.On July1,2010, Tort liability law of the People’s Republic of China carried out formal, which provides a good opportunity for civil tort theory research, especially for the research on the omission of torts. This paper starts at the concept of the omission of the torts, with a brief analysis on the basis of historical development of the omission of the torts liability, and focuses on its theoretical basis, and further discusses its constituents, and finally simply describe the present legislation activity tort liability and puts forward improvement ideas, so as to theoretical research and judicial practice about the omission of the torts liability in our country. This paper’s main contents are as follows:The first part is the overview of the omission of the torts liability, first this part defines the concept of the omission of the torts liability; Secondly analysis its’ behavioral; Then from two angle of the ancient and modern to introduce history on the omission of the torts liability, combed the development context of the omission of the torts.The second part is to analyze theory foundation for the omission of the torts liability, separately from three aspects that are the philosophy of law theory, risk control theory and cost effectiveness theory, the jurisprudence foundation. The philosophy of law theory are divided into liberalism theory, community theory, free association theory; The jurisprudence foundation includes the duty demand theory, moral theory and the principle of honesty and credit and public order and good principle, these theories provide the theory support and basis for the omission of the torts liability.The third part further to analysis the theory on the omission of the torts responsibility, firstly analyzes the principle of responsibility imputation, according to our "Tort liability law" regulation, the principles of responsibility imputation applicable to the principle of fault liability and no-fault liability principle. Secondly, research the premise of research-activity compulsory, and analysis its concept, characteristic, content, source and sorting. Then, discuss the components of the omission of the torts damage liability, according to the principle of fault liability, constitutive requirements are the omission, fault, damages and causality; finally analysis the tort liability form of the omission of the torts liability, which is divided into individual responsibility and shared responsibility. The fourth part analysis the current provisions of the omission of the torts liability in laws, and put forward the idea on how to perfect the omission of the torts liability, that is, start from duty, take general conditions and lists the form of detailed regulations.The omission of the torts liability is one of the important contents in tort liability and corresponds to activity tort liability, is a complex and huge project. The author rang shallow, chose such a topic, and is for the purpose of studying the basic theory of the omission of the torts liability, in order to provide solutions and reference for the determination of the omission of the torts liability in China’s tort law practice and interpretation. But due to lack of knowledge and limited ability, some views may not mature, argument is not sufficient, and many of the related problems of system also have not been deeply. How to design a suitable and reasonable omission of the torts liability system for China’s national conditions on the whole, needs us to further in-depth and comprehensive thinking, this paper studies the absence and regret also needs me to pay more work.