Research On Illegality Of The Constitutive Requirements Of Tortuous Liability

Constitutive elements of Tort liability, the basic criterion and essential condition to confirm and investigate the tort liability, take important significances of tort liability in theory and practice. However, since Roman law, for such an important theoretical, legislative and judicial practice, academia has great differences of opinions, and has not formed a unified definition. The Tort Liability Law of the People's Republic of China has been enacted for many years, but scholars are still having different understandings to its constitutive elements. The core of their dispute is whether the illegal violations should be the constitutive elements of the tort liability law. Therefore, the investigation of the illegal elements of Tort Liability Law theoretically has very important theoretical, legislative and judicial importance. In the introductory part, from the disputes related to theory, legislation and practice, this paper introduces the basic problems I proposed to study; Through extensive literature review, this paper aims to further sort out the core issue of this study, as well as its theoretical, legislative and practical significance. On this basis, the paper with four parts comprehensively, deeply and systematically studies the illegal requirements of the tort liability law.The first chapter of this paper is to give a theory review to the negative opinion of the illegal elements. The purpose is to make an introduction and comment on its theory and legislation. First, the paper makes a comprehensive introduction to the negative opinion of illegal elements. Because there is only an objective and all-round understanding to the negative opinion of illegal requirements can respond to its analysis and assessment, and make a truly valuable theoretical insight. From two sides, this paper introduces the basic theoretical perspectives of the negative opinion of illegal requirements comprehensively, detailed and objectively:first, the illegal elements have no necessity to exist independently. There are three main reasons:1, objective fault can absorb illegal elements; 2, illegal elements are often indispensable; 3, illegal elements are not conducive to the protection of victims. Second, there is no feasibility for the independent existence of illegal elements. There are three main reasons:1, Illegal elements does not have a separate connotation, so it can not accurately be defined; 2, due to the intertwined characteristic of illegal elements and fault elements, there is no basis to recognize the illegal elements; 3, there is no legal basis for illegal elements in China. On the basis of theoretical introduction, this article briefly analyzes the negative theory of illegal elements, which provides a theoretical basis and reference object for the following studies. Second, this paper makes a more detailed description, analysis and research on the relevant legislation of illegal elements, especially the legislative background of French Civil Code, legislative style, judicial effect, theoretical amendments to its changes, and from which to explore the controversial elements and development trends of constitutive elements of tort law. I found that there is a development process worldly from never recognize illegal elements to gradually recognize illegal elements in tort legislation. To further illustrate the problem, this paper compares three kinds of tort legislative model based on different perceptions of illegal elements worldly, that is, the denial model of France, the directly affirmed model of German and the indirectly recognition, aims to further the relevant theoretical and practical issues in this paper.The second chapter of this paper is to study the theoretical basis for the independent existence of illegal elements. This paper discusses its theoretical basis mainly from the perspective of the basic areas of the law. In this section, the article conducts a more comprehensive, in-depth study on its basic theory from the distinction among fault and illegal, freedom and order, subjective and objective, and the relationship between natural law and positive law. This article holds that fault is a moral evaluation of the subjective state of mind impugned. The core elements of identified fault is the will ability, foretell ability and behavioral state of mind. As a subjective element of the tort liability, it does not involve the objective aspect of the behavior. Illegal infringement is a kind of legal evaluation to torts. The basis and standard of identified illegal act lies in the objective act itself, as well as the objective evaluation of law, but not involves the subjective aspects of the behavior. Because fault and illegality has completely different identification criteria and standard, the subjective elements and objective elements belong to completely different areas and has a completely different nature, can't absorb and replace. If only emphasize on the subjective fault, but not emphasize on the illegal behavior, we actually expand the scope of tort liability even it looks to protect the freedom of action. It is possible to make legitimate behavior is also subject to legal prosecution if we exclude the illegal elements. From the perspective of coordinating freedom and order, we shall not only emphasize on the subjective fault, but also stress on the illegal behavior. We should combine subjective factors and objective factors together to build the constitutive elements system of tort liability. Natural law emphasize on the protection of behavior freedom, positive law stress on the maintenance of public order, both have their limitations. Fault elements associated with the freedom of action and subjective imputation, illegal elements associated with social conventions and objective attribution, therefore, both the fault and illegality have same important nature and status, and can't absorb and replace each other. Through this section, I intend to prove that there are fully theoretical basis for the independent existence of the illegal elements of tort liability.The third chapter of this paper analyzes the necessity and feasibility of the independent existence of illegal elements. For the viewpoint of "illegal elements has no necessity for independent existence ", the article maintains that the tort liability illegal elements has theoretically and legally significance in establishing a code of conduct, defining the scope of responsibility, realizing the self-consistency theory of liability. Only established the illegal elements of tort liability in accordance with the law, the law can provide people with the necessary code of conduct for people's social activities, and achieve harmonization between the freedom of action and the protection of order. Only established the illegal elements of tort liability in accordance with the law, the law can provide people with objective referee in judicial practice, with which the scope of application of tort liability could be defined. Only established the illegal elements of tort liability in accordance with the law, the law can provide people with the basic liability system in confirmation of tort liability, and truly realize the systematical self-consistent in torts theory. If there is no independent existence of illegal elements, it is impossible to form a harmonious social order even people's behavior are free, and impossible to scientifically unify the scope of application in torts, and shall have self-contradictory and internal conflicts in the system of tort liability. This article holds that the independent existence of illegal elements has not only the theoretical value, but the practice value. Because illegality and fault have different recognized standards, so there is independent basis and standards in identifying the illegal elements. Because legislation can provide a clear basis for the definition of illegality, there is possible to define illegal elements in practice. There are specific provisions in defining illegal elements, and the general provisions and principle provisions in torts, so the identification of illegal elements should have a complete set of normative system. Therefore, we shall exactly identify the illegal elements in the judicial practice.If the first part of this paper sorts out induction of this problem, then the second part and third part of this paper shall focus on that problem, and make positive argument from the perspective of the independent existence of illegal elements. The study on the theoretical independent existence of illegal elements, and the analysis on its necessity and feasibility are the theoretical value of this study.The fourth part of this paper focus on the practical significance of this study. Based on the previous study on the independent existence of illegal elements, this part makes proposals on the revisal and improvement of current law. Even the torts affirmed the illegal elements with the expression "encroach on other people's civil rights", there are still much to further revise and improve. Specifically, in the formulation of the Civil Code, its architecture system should be adjusted appropriately. Based on the structure of General principles of the civil law, civil rights and rights remedies, we should adopt civil rights remedy law instead of tort liability law after the general principle of the civil law, jus in rem law, creditor's rights law, contract law, family law, inheritance law, to achieve systematic and integrated protection of civil rights. It's better to provide the general terms of civil rights in the general principle of civil code, which shall lay the foundation for the protection of civil rights and the recognition of illegal elements in tort liability law. Based on the different nature of the rights, the civil code should provide different measures to protect and remedy different civil rights and legal benefits. The civil code should establish the basic principles of sacred private right, principle of good faith, and principle of public order and good customs, so provide in principle the basis for the definition of illegality. The law should further clarify its object and scope of application, clearly define tort behavior, and regulate tort liability according to different types of tort behavior. The law should scientifically construct the imputation system of tort liability law, establish a unified multi-level imputation system based on principle of fault liability, namely the implementation of the general principle of fault liability, the presumptive principle of fault liability and recognized principle of fault liability; the law should also clearly define the illegal elements in tort liability law, strictly classify "encroachment",which defined the nature of behavior, and "damage", which defined the tort consequences, and use different concepts in different occasions. The law should provide general and special principles in the illegality of tort behavior, strictly classify general tort and special tort, regulate tortious liability of omission and tortious liability of acting respectively,further integrate the relationships between general tort liability and special tort liability, classify the illegal elements of some specific tort liability. Those suggested modifications to civil code and tort liability law mentioned above are the actual value of this study.