The Study On Acting Obligation Caused By Pre-Action

The cases of omission tort caused by pre-action bring people heavy losses in reality. The research of omission tort is too little, it isn’t ruled by the law, either. These factors lead to judgment inconsistent in judicial practice. In order to solve this problem, we should research on the acting obligation caused by pre-action. The article consists of six parts and analysis the acting obligation caused by pre-action through comparative analysis method and empirical analyses method.The first part points the concept of acting obligation caused by pre-action by three cases and judgments. This part looks for the commons of the cases and the focus of controversy, and then proposes the rationality of pre-action and acting obligation.The second part describes the legislative provisions of the acting obligation caused by pre-action. It recalls the development process of acting obligation in the world, introduces the theories in the United States and Germany, lists provisions about the acting obligation in Contract Law and Tort Law and negative crime in Criminal law, in order to find out suitable provisions for the specific cases.The third part of the article discusses the way of thinking about legal principles to search for solutions of the cases under the circumstance of no specific provisions. For this type of tort cases, there is legislative vacancy in the existing legal system of our country. Therefore, it is necessary to find out the relevant legal principles to deal with these cases.The fourth part analyzes the basic principles in positive law, and interprets legal principles that can provide solutions for the cases. This section integrates the principles with the obligations to demonstrate the legitimacy of the obligations.The fifth part puts forward theoretical basis of acting obligation caused by pre-action and the legislative proposal of tort liability of omission. There are there theoretical bases, pre-action intervening living resources of others, risk control theory and trust relationship. According to the features of the obligations and current situation in our country, we can refer to foreign legislative patterns and propose the pattern of “general clauses plus limited list”. The law should express the condition and content of the acting obligation caused by pre-action clearly. At the same time, the article suggests the Tort Law formulate tort liability of breaching the obligations and the conditions causing tort liability. Also this part distinguishes between acting obligation caused by pre-action and security obligation.At last, this paper reviews the cases mentioned previously, and puts forward solutions to the cases according to legislative proposals for interests of the parties and authority of law.