On The Establishment Of Bystanders’ Easy Rescue Obligation In Tort Law

Nowadays, China has entered into a stranger society and high-risk society, the cases that bystanders do not take action to save others in danger occur frequently, and gradually this serious phenomenon has been widely concerned by the whole community. The traditional concept believes that whether bystanders should rescue stranger in danger is a moral problem, so it should be constrained by the code of ethics. Present legislation and judicial practice in China also do not recognize that bystanders should assume the obligation to rescue strangers in danger. However, because of the increasingly serious social apathy currently, academia and the public begin to question the traditional idea and put forward to an extensive discussion and study about whether the bystanders of not rescuing others in danger should be investigated the legal liability or not. According to the study of comparative law and the research to our country’s judicial practice and theory controversy of rescue obligation, this thesis tries to discuss that whether China can establish and how to establish the rescue obligation between strangers.This thesis consists of six parts. In the first part, the concept of bystanders’easy rescue obligation has been proposed, it combings the generation of this obligation and defines this concept, with the purpose of clearing that what is rescue obligation in this paper. The second part is about the study of comparative law. According to the analysis of legislation and judicial practice of bystanders’easy rescue obligation in comparative law, it comes to a conclusion that easy rescue obligation has been stipulated in the vast majority of civil law countries and some states of America, and someone who violates this obligation will assume criminal liability or tort liability. This conclusion provides a certain extent of support and reference for stipulating bystanders’easy rescue obligation in our country. The third part researches the judicial practice in our country and concludes that it denies the bystanders’easy rescue obligation. Therefore, there is no effective legal means to regulate the social phenomenon of not rescuing others in danger and the judicial organs can not sanction these apathetic bystanders, this reality violates the expectations and aspirations of the public. The forth part summarizes the theoretical controversies of bystanders’easy rescue obligation in China and expounds the views and main reasons of positive theory and negative theory separately, followed by a critical analysis of two theories, the research points out that reasons of negative theory are not sufficient to deny the establishment of easy rescue obligation in China, so bystanders’easy rescue obligation should be and can be stipulated in Chinese law. The fifth part demonstrates practical reason and theoretical basis for stipulating easy rescue obligation in Tort law. Firstly, this obligation should be regulated by tort law rather than criminal law; Then, this paper elaborates the practical reason and theoretical basis for stipulating easy rescue obligation in Tort law; At last, with balancing of interest, further proof has been taken to illustrate the legitimacy and rationality. The last part tries to establish the system of the bystanders’easy rescue obligation in China. It clearly rules the generation conditions and the legal consequence of violating this duty. Furthermore, it proposes to establish the rescuer’s claim for damage compensation so that it reliefs his/her damage suffered in the rescue process. In the end, some specific legislative design recommendations have been presented.