The Study Of Tortious Liability Of Mission

Tortuous liability of omission refers to the liability caused by omission.Historically, in individualist philosophy under the domination of nature, the tortuousliability of omission is not survival for the soil. However, entered the modern society,and also with the increase of complexity degree of social activities and division oflabor, tortuous liability of omission cases occurred frequently, the tort law adjustingrange also in unceasing expansion, the world will not begin as tortuous liability ofomission into the legal regulation framework. Looking at the system of civil law inchina, we will find that there is no specific provision about tortuous liability ofomission, only embodied in the general clauses of tortuous liability and the relativeprovisions of civil obligation, not to mention the form uniform criterion system.Based on this, this article emphatically as tortuous liability of omission establishedpremise, the author use synthetically the methods of historical analyses, empiricalanalyses and comparative analyses to construct the relative theories of tortuousliability of omission and comb the current legislative situation of tortuous liability ofomission in china, attempts to put forward the legislative suggestion. Besides thepreface, this article consists of five parts.In part one, the outline of tortuous liability of omission. In the first, this articleintroduces tortuous liability of omission of concept and essence, not considered as tortnature is not as the act itself, but it is the infringement of the rights protected by law.Then, introduces tortuous liability of omission is never need to assume responsibilityto assume finite responsibility development course. Last, this paper discusses thetheoretical basis of tortuous liability of omission. It demonstrates the validity oftortuous liability of omission from the aspects of philosophic thinking, theory ofcontrolling danger, principle of good faith and principle of public order and moral.In part two, the comparative survey of tortuous liability of omission. The two lawon tortuous liability of omission theory is the existence of the same point as there aredifferent, the same performance in two big legal system country tortuous liability ofomission had never bear the responsibility to assume finite responsibility developmentcourse. Because of the two law legal tradition and social idea different, leading to aless as tortuous liability of omission development pattern is endless and same, such asthe German law the general safety of attention theory to solve as tort problem, while Japanese law the duty of care, the Anglo-American law using safe attention duty tosolve as tort problem, investigate its essence is by determining whether the violationof obligation to solve this problem. Generally speaking, expand the obligations as atype of method for expansion as tortuous liability of omission scope effect is distinct.In third part, breach of obligations shall bear tortuous liability of omission. Thisis the focus of this paper. As the obligation is the perpetrator to take active measuresto protect others, preventing others from suffering a risk to damage. The obligation asessence lies in is an altruistic obligation. As a compulsory although look from theexterior has no behavior, but also can harm to others, this study as obligation isnecessary. Then, this paper discusses six types of obligations. And points out themeasure whether the violation of obligations as a standard, namely reasonableprinciple and rational principle. In order to solve the social life frequently appear notas infringement cases, as the scope of the obligation has experienced from the law tothe law of the expanding process. However, this expansion is not unlimited, excessiveexpansion will make the personal freedom and the social interest clash between ismore intense, accordingly, also decided the obligations as set certain limits.In fourth part, tortuous liability of omission form. First of all, this paperdiscusses as tort liability of omission principles, namely the principle of fault liability,the specific application of the presumed mode. As a result of the act itselfconcealment, which determines the burden of omission infringement has difficulties,using the principle of presumption of fault on the victim, increase the possibility ofcompensation. Secondly, introduces the tort liability, single liability and joint liability.In fifth part, the future development trend of China’s tortuous liability ofomission. The division first on our current laws and regulations and judicialinterpretations concerning not as tortuous liability of omission provisions are detailed,pointed out that China’s law does not clearly defined not as it. Secondly, based on theGerman law and relevant obligations as a presentation, try to draw lessons fromadvanced experience as obligation into the Chinese legal system. Finally, according toChina’s laws in the traditional basis, put forward our country not as tort liabilityshould take" general terms and specific examples of" combination of legislative mode.Only in this way can be well coordinated legal lag and open the contradictionbetween.