Discuss The "Special Relationship "of American Tort Law

As the increasingly frequent contact between people and growing of social risk. There are have been some new omission infringement cases. While our country current law does not explicitly provide for these situations, which leads to the situation that different courts or even the same court on similar cases to make a different decision.To make the behavior assume the omissions liability, we first to make sure its exist action responsibility. And our existing source of action responsibility has been unable to meet the needs of legal practice, which is necessary to expand the source of action responsibility. The American tort law on the special relationship theory points out a way for us, which has become the source has a history of more than100years. At the same time, the academic and theoretical circles of American carried out extensive and in-depth study on special relationship. However, scholars in our country make little research on special relationship theory In order to adapt to the development trend of modern tort low and solve the new omission infringement cases appearing in reality. We need to study the special relationship theory.The article is divided into five parts.The first part mainly introduces the concept types、characteristics and snecial relationship with several other as different sources of obligation.The second part and the third part introduces the analysis of the special relationship history and evolution of the social background.The special relationship of American tort law is originated in indirect infringement compensation lawsuit writs of medieval England court. By the end of the nineteenth century, with the formation of the care duty, the distinction between act and omission, as well as under the influence of the American society humanistic philosophy, social structure changed, the moral law of motion and some extreme cases. The special relationship theoretical system was officially formed. American "Restatement of Torts" in the form of the statute establishes special relations system. And carried out the provisions of typed, which provide specific guidance for the judicial practice.The fourth part mainly introduced based on the special relationship why can produced duties and type of obligations.The special relationship could produce the action obligation, that has four reasons:1. Predictability.2. Opportunity loss.3. Reduced ability of self-protection.4. Implement the status of action obligation. Action obligation arising as a result of the special relationship, including the protection obligation, control obligation, the assistance obligation, warning obligation and inspection obligation. There are four main theories about criteria of the special relationship, they are control capability, reasonably afford doctrine, trust and public policy.The fifth part mainly introduces the current deficiencies as compulsory legislation and the special relationship in china as a compulsory legislation inspiration.According to "Civil Law","Tort Liability Act", as well as other laws and relevant judicial interpretations, the main sources of action obligation of our country are law, contract, advance behavior and security obligations. Therefore,the existing legal system of action obligation exists some lacking such as obligation sources limited, fragmentation, limited subject and unknow protection object. According to learn the American tort law on the special relationship theory, we can base on the premise of existing theories and introduce the special relationship theory as one source of the security obligation. Which not only can solve theose new infringement cases in judicial practice, but also can expand the source of action obligation. On the basis of retaining the action responsibility, we can carry out typed provision with action responsibility, also expand action obligor and explicitly protected object.