美国无救助义务规则的修正

The Amendment of American's No Duty to Rescue Rule

无救助义务是美国传统侵权法上的一项重要规则。由于社会组织结构的精细化使人与人之间的关系更加紧密了,容易出现牵一发而动全身的局面,如果还任由人们对他人的困境无动于衷可能会造成无法挽回的严重后果,加之作为与不作为的区分越来越小,故美国选择了一条侵权过失责任的改良道路,主张不作为不应该成为被告承担过失责任的障碍。而美国的司法判例和立法经验也告诉我们,一般无救助义务规则正经受两方面的侵蚀:一是扩大特殊救助义务的范围;二是通过制定法律承认一般救助义务。

No duty to rescue is an important rule in the traditional tort law in the United States. With the refinement of the organizational structure of society, the relationship between people is more closely and one slight move in one part may affect the whole situation. If people are still allowed to be indifferent to the plight of others, it will cause irreparable consequences. As the distinction between feasance and nonfeasanee is blurring, the U.S. has improved the tort negligence duty, proposing that nonfeasance should not be claimed as a defense against assuming liability for negligence. The American judicial cases and legislative experience have shown that the general rule of no duty to rescue is challenged in two aspects. Firstly, the scope of special duty to rescue has been expanded; and secondly, the general duty to rescue has been recognized by statutes.