侵权法上作为义务研究
发布时间：2019-04-11 12:11
【摘要】：作为义务与不作为义务统称为行为人承担的注意义务。不作为义务是指行为人应当不积极地实施某些行为以防止他人受到损害。作为义务则是指行为人要积极地实施某些行为维护他人的利益以避免他人遭受不合理的损害。根据作为义务与不作为义务的区分,得出违反作为义务导致不作为侵权,违反不作为义务导致作为侵权。作为的侵权行为一直是侵权行为法领域所重点关注的对象,而随着社会纠纷的复杂化与多样化,不作为侵权在侵权行为法领域越来越受到重视。在一些特殊环境条件下,我们必须积极地为一些作为义务,不然就要承担因损害造成的侵权责任。作为义务在人类社会的一开始仅仅只是受到道德约束,但伴随社会生活的急速变革,人与人之间发生的侵权纠纷越来越复杂多样,法律就逐渐将作为义务纳入到其领域内。人类社会活动的速度加快及生产生活的精细度提高使侵权行为法所保护的对象不断扩张,新的侵权行为类型将源源不断的产生,作为义务的规定可以很好地解决这些新型案件。但我国现行法律并没有对作为义务以法律条文的方式明确规定,只是在《侵权法》和一些民事法律法规中以零散条文的形式规定了一些在特定情况下具有特殊关系的人之间存在的不作为侵权的作为义务。本文讨论作为义务的概念,分析什么是作为义务,这是讨论作为义务需要解决的问题。首先,对各国作为义务的比较考察,主要介绍了作为义务在各国的立法上的具体体现及比较,研究作为义务的理论依据。其次,研究作为义务产生的各种渊源,作为义务的来源是探究作为义务的重要部分,只有研究好了作为义务的来源才能很好的判定不作为侵权。还有,要对作为义务的判断标准进行分析,才能判断作为义务的有无。最后分析我国作为义务的现状并提出完善建议。
[Abstract]:The obligation to act and the obligation of omission are collectively called the duty of care undertaken by the actor. The obligation of omission means that the perpetrator should not actively commit certain acts in order to prevent others from being harmed. The obligation to act means that the actor should actively carry out certain acts to protect the interests of others in order to avoid unreasonable damage to others. According to the distinction between the obligation of act and the obligation of omission, it is concluded that breach of obligation of act leads to tort of omission and breach of obligation of omission leads to tort of act. The act of tort has always been the focus of attention in the field of tort law, and with the complexity and diversification of social disputes, omissions have been paid more and more attention in the field of tort law. Under some special environmental conditions, we must actively act for some obligations, otherwise we will have to bear the tort liability caused by damage. The obligation of act is only restricted by morality at the beginning of human society, but with the rapid change of social life, the disputes of tort between people become more and more complicated and diverse, and the law gradually brings the obligation into its field. The speedup of human social activities and the improvement of the precision of production and life make the objects protected by tort law expand constantly, and the new types of tort will come into being continuously, and these new cases can be solved well as the stipulations of obligations. However, there is no explicit provision in the current law of our country for the act of obligation in the form of legal provisions, Only in the tort law and some civil laws and regulations in the form of piecemeal provisions, some people have a special relationship in a specific situation between the existence of an act of tort obligations. In this paper, we discuss the concept of act obligation and analyze what it is, which is a problem to be solved. First of all, the comparative investigation of the obligations of each country, mainly introduces the specific embodiment and comparison of the obligations of act in the legislation of each country, and studies the theoretical basis of the obligations of as. Secondly, the study of the origin of the obligation of as, as the source of the obligation is an important part of the exploration of the obligation of as, only by studying the source of the obligation of the act can be a good judgment of tort as an act. In addition, it is necessary to analyze the criterion of the obligation of act, so as to judge the existence or absence of the obligation of act. Finally, this paper analyzes the present situation of our country as an obligation and puts forward some suggestions to improve it.
【学位授予单位】：云南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
本文编号：2456394
[Abstract]:The obligation to act and the obligation of omission are collectively called the duty of care undertaken by the actor. The obligation of omission means that the perpetrator should not actively commit certain acts in order to prevent others from being harmed. The obligation to act means that the actor should actively carry out certain acts to protect the interests of others in order to avoid unreasonable damage to others. According to the distinction between the obligation of act and the obligation of omission, it is concluded that breach of obligation of act leads to tort of omission and breach of obligation of omission leads to tort of act. The act of tort has always been the focus of attention in the field of tort law, and with the complexity and diversification of social disputes, omissions have been paid more and more attention in the field of tort law. Under some special environmental conditions, we must actively act for some obligations, otherwise we will have to bear the tort liability caused by damage. The obligation of act is only restricted by morality at the beginning of human society, but with the rapid change of social life, the disputes of tort between people become more and more complicated and diverse, and the law gradually brings the obligation into its field. The speedup of human social activities and the improvement of the precision of production and life make the objects protected by tort law expand constantly, and the new types of tort will come into being continuously, and these new cases can be solved well as the stipulations of obligations. However, there is no explicit provision in the current law of our country for the act of obligation in the form of legal provisions, Only in the tort law and some civil laws and regulations in the form of piecemeal provisions, some people have a special relationship in a specific situation between the existence of an act of tort obligations. In this paper, we discuss the concept of act obligation and analyze what it is, which is a problem to be solved. First of all, the comparative investigation of the obligations of each country, mainly introduces the specific embodiment and comparison of the obligations of act in the legislation of each country, and studies the theoretical basis of the obligations of as. Secondly, the study of the origin of the obligation of as, as the source of the obligation is an important part of the exploration of the obligation of as, only by studying the source of the obligation of the act can be a good judgment of tort as an act. In addition, it is necessary to analyze the criterion of the obligation of act, so as to judge the existence or absence of the obligation of act. Finally, this paper analyzes the present situation of our country as an obligation and puts forward some suggestions to improve it.
【学位授予单位】：云南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
【参考文献】
相关期刊论文 前1条
1 张民安;论不作为过错的侵权责任[J];法制与社会发展;2002年05期
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