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Research On The Tort Of Omission And Its Legislative Perfection

Posted on:2021-01-06Degree:MasterType:Thesis
Country:ChinaCandidate:K N XiongFull Text:PDF
GTID:2416330602470858Subject:Law
Abstract/Summary:PDF Full Text Request
In the tort law,the negative legal consequences that we should bear are the general cognition of the tort liability of omission in the legal theoretical circle of our country.The tort liability of omission is an exception to the general tort liability principle of "No Responsibility for Inaction".Different from the traditional tort,omission tort has its own unique characteristics,elements of behavior and the structure of tort.This paper is divided into five parts to explain and analyze the mode of omission tort and the principle of imputation.On this basis,it puts forward the current legislative suggestions in this field in China,and further adjusts the cases of omission tort by building a systematic legislation of omission tortThe first part introduces the origin and essence of the tort of omission,and distinguishes between the tort of omission and the tort of action.Through the relevant provisions in the ancient code of law,this paper finds the form of the tort of omission,and explores the three foundations of legal philosophy of omission infringement They are liberalism theory,community theory and Marxist theory of free association It also explains the necessity of the distinction between omission tort and act tortThe second part is to solve the problem of identifying the tort of omission by analyzing the elements of "omission".In this part,the constituent elements of omission should be analyzed from the subjective and objective levels,and the subjective fault is also the element to consider the tort liability of the actor.Then by explaining the three-tier behavior structure of omission tort,this paper makes a more comprehensive study of the causality theory and damage judgment of omission tort,and further studies its particularity.The third part makes a comparative study of the legislation of omission tort in different countries,so as to enlighten and think about the choice of legislation mode of omission tort liability in China.The general generalization of civil law countries and the case enumeration of common law countries have their own characteristics Through comparative analysis and Research on the extraterritorial legislation of omission tort,we can provide reference for the legislation of this aspect in China.The fourth part focuses on the source of the duty of omission and the way of imputation.The discussion of different categories of sources of obligations actually reflects different value orientations and social cost considerations.On this basis,this paper discusses the proper performance and reasonable limitation of the duty of omission,which provides a logical premise for the study of the liability of omission.The last part is to comment on the existing legal provisions of our country,and put forward the corresponding opinions on the problems existing in judicial practice,integrating theoretical research with actual legislation.Specifically,it covers the legislative conception of the classification provisions of the cognizance of the act of omission and the assumption of the liability for the act of omission,in order to provide solutions for the practical affairs of the tort of omission in the judicial practice of our country.
Keywords/Search Tags:tort of omission, acting obligation, fault liability, tort liability part of Chinese Civil Code
PDF Full Text Request
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