The Origins And Sources Of Active Duties In Non-feasance Tort

In recent years,judicial cases related to non-feasance increase rapidly,which have provoked vehement discussion after they were reported.The significant trend to extend liabilities for inactive tort behaviors in many countries and districts can’t be ignored any more.Before we impose a liability for non-feasance on the specific person,the logical step is to determine whether there is a duty to act,and then we can examine whether he or she has violated a duty of care.This dissertaion aims at the fundamental question about the origin and sources of duty to act,which analyses the basic theories of duty to act and summarizes the laws and judicial attitudes in some main countries.After we integrate the existing theories and reclassify the types of active duties,we will finally dwell on how to judge the active duties in China in order to improve the system of active duties.This paper includes introduction,mainbody and conclusion.The introdution raises the core issue of inactive infringement in the current society full of danger,which leads to more and more non-feasance cases,and whether one has the duty to act will affect the social association pattern,so it’s the foundation of non-feasance cases in tort law.The conclusion summarizes the standpoints in the mainbody.The mainbody of the text consists of four parts:The first part discusses some changes of value orientation in tort law which are embodied in the extension of non-feasance tort and its theories.Duty to act is limited in narrow exceptional cases in traditional views,which has been challenged in current society full of risks that result in some changes of value orientation.Building a system of active duties can help ward off the danger and harm,and the economic theories such as cost for profit and the lowest cost,the warmhearted nature of philosophy in human law,the social interaction and the principle of trust and dependance can justify the duty to act.The second part is about the laws and judicial points related to active duties in some foreign countries.Although there are some differences in each region’s route and progress,the scope of active duties has extended and appears to resemble each other,which contains the active duties prescribed by law,arranged by contract,demanded in profession or business and derived from special relationships,preceding dangerous behaviors,creation or control of risks,voluntary assumption,public order and good custom,moral rules and common social norms.The third part reflects on the classifications of active duties.After summing up the sources of active duties in each country and pointing out the differences in scholars’ opinions,the writer holds that the active duties derived from wrongful preceding dangerous behaviors and the duty to aid strange people should be deleted,and active duties derived from a contract can be integrated into the type of special relationships.What’s more,the classification of active duties mixes the legal rules,the philosophy and judicial reasons,which cannot provide a clear step for a judge to determine whether there exists a duty to act.The fourth part focuses on specific explanation and judgement of active duties.This part provides some thinking paths to explain whether to confirm an active duty.If a duty to act has been prescribed in the law,the judge needs to think about the pro forma level and nature of the law,and furthermore to look for the virtual purpose of legislation.If there is no plain duty in all legal provisions,the judge can follow two steps:Firstly,examine whether there exists the basic theories of active duties,which include creating or keeping in control of risks,being in special relationships or depending on the principle of trust.Secondly,the feasibility and necessity to act must be evaluated.