Research On Tort Liability Of Omission

Tort liability of omission means under the control of free awareness, the actor isnegligent in performing act duty, and there is causality between this kind of deliberateor negligent omission and damages suffered by a third party, the actor should bear tortliability consequently. Traditional tort law believes that people should not beresponsible for pure omission. As a result, countries adopt a kind of “no obligationrule” in a very long period of historical time. However, with the development ofsocial economy and progress of human civilization, continuous appearance of tortacts in the external expression form of omission brings new topics for educationalcircles.The dissertation starts from the basic theory and system value of omission tortliability, exposits the origin and development process of omission tort liability.Through comparison of current situation of omission tort liability system amongcountries, the dissertation analyzes the practical meanings of the system constructionfor social life. At the same time, the dissertation briefly analyzes basic essentials ofomission tort liability, including constitutive requirements, doctrine of liabilityfixation and grounds for exemption taking Tort Law of the People’s Republic ofChina as breakthrough point. Finally, the dissertation discusses on whether spectatorsshould bear omission tort liability while facing the normal affairs of “moralindifference” today, provides conceptions, so as to find an effective way to balancethe relationships between law and freedom, law and moral.Law is superstructure and the alteration of economic foundation has significantimpact on law. From mid-18th century to the end of19th century, the continuance ofthe industrial revolution brings qualitative leap for the economic development ofEuropean capitalist countries. Principle of “no responsibility because of omission”adopted by early tort law is not able to satisfy people’s higher requirements of sociallife security. In spite of this, tort liability of omission always lingers within theframework of social contract, and it is not able to find suitable standpoint. Justice is the last barrier to defend the rights. When the blanks of legal provisions facecontinuous emerging victims of omission tort acts, when justice is not able to playany efficiency because of the embarrassment that it could not effectively remedyvictims, the confirmation of tort liability system of omission becomes the onlysolution as the saying goes “without remedy, without rights”.The violation of act duty is the premise of bearing tort liability of omission. As aresult, act duty is especially important to the research on omission tort liability. It isthe interference of individual freedom that law forcibly requires people to do thethings must be done. Consequently, not all “acts” in every situation should berecognized as a kind of duty. In a similar way, not all types of “omissions” should beevaluated by law. Firstly, in the aspect of act duty’s origin, common views in China atpresent believes that act duty of omission tort liability is mainly derived from fouraspects, including direct stipulation in law, special status or relationships amongparties, actor’s profession or business requirements and prior activities of actors.Secondly, in the aspects of liability fixation doctrine, actor’s fault is a necessaryfactor of omission tort liability. As a result, fault liability principle is adopted in law.Thirdly, in the aspect of constitutive requirements, the existence of act duty, omissionof actor, subjective fault and causality between the generation of damage results andacts are necessary constitutions of omission tort liability. Fourthly, in the aspect ofexemption instances, five legally stipulated exemption instances of general act tortcould not be fully applied because of omission tort liability, which means they willnot necessarily lead to the exemption of omission tort liability.Through analysis of “moral independence” affairs in society at present, thedissertation finally utilizes whole chapter to pose the necessity discussion on theconfirmation of general civil salvation duty. Setting salvation duty for citizens equalsforcing people to uphold justice. It is a tendency judging from legislation in othercountries, justice precedents and academic study, but it should be strictly limited inreasonable ranges, that people have this kind of duty only in the situation that victim’slife and health are facing emergency, substantial risk, actor has the ability and it willnot cause other damages. In addition, actor should not bear unfavorable consequencesbecause of his good behavior. As a result, actor should not take responsibility for the damages not caused by his deliberation or gross negligence. At the same time, victimsshould bear reasonable costs for actors because of his salvation acts.It may not be the best solution to endow act duty for citizens to a certain degreewhile facing “moral indifference”. People should seek effective solutions from thereasons generating the phenomenon. As a result, compared with determining civilsalvation duty, the appearance of “good Samaritan law” is needed more urgently inChina to alleviate social contradiction as fundamentality, so as to awake “conscience”of whole society.