On The Form Of Tort Liability

In the present law of China, the contents of right of real claim and the forms of tort liabilities have overlaps. The contents of right of real claim exist not only in the rules of protection of real right in Chapter 3 of Real Right Law, but also in the rules of the form of tort liabilities in Article 15 of Tort Law. Many scholars consider that right of real claim should bring into the form of tort liabilities, and that Tort Law should separate from Obligation Law, which they think can perfect the system of Civil Law and the Obligation Law can be alcoholized. But this view deserves more consider in reverse. We should search the independent value of right of real claim in the partition and character of the real right. When the science of rights runs to the claims, the rights itself becomes primary, and that the achievement and protection of rights via suits become minor. But the legal technology of claims has milestone value different from that rights and suits exist in one system. The characters of the right of property dominion and the recoverable dominion of real rights are the base of the right of real claim. But the character of the right of property dominion and the effectiveness of imperium of the real right are blended and mutually intertwined together, so that they can’t be divided in actual exertion and comprehension of real right. In this way, it is necessary for the different results in understanding of the character of right of real claim. Actually the different views are just because of the different angles in understanding. Both right of real claim and tort liabilities can protect the real right, but their actions are on different levels. In comparison, right of real claim have quality of directness in protecting real right. The view of discarding right of real claim reflects the inadequate regard in civil claim system and the thinking mode of claim.The main contribution of the Pandekten civil law system is making scientific classification of civil rights. This emphasis on rigorous classification of rights isn’t neglecting the obligation, but no special emphasis on responsibility. Actually, right of real claim is closely related to the legal technologies which detaching real right from creditor’s right and dividing right of property dominion from relative right. Indeed, it is hard to say that partition of real right and creditor’s right is absolutely reasonable. But it meets the rights essence doctrine and the basic requirement of the right’s development history. During sapiential partition to the rights by Kant and Savigny, German Civi Law has marked off real right and creditor’s right. But actually this criticism just aimed at specific phenomenon and was not able to consititute the scientific reason of dividing real right and creditor’s right. The private rights and the probability of compulsory realization of rights constitute the contravention between substantive law and procedural law. When substantive law and procedural law depart, the measures that removing the ingredient of litigation rights from rights doesn’t mean the probability removing the compulsory realization of rights. Claim contains the possibility of appeals and execution, so it has natural technological advantages in realizing private rights. The real right produces claims to start appeals and execution to realize domination of things accords with sense. Right of real claim has necessity of existence in the traditional civil system concluding right of property dominion and divisiory claims. Human subjectivity requires the improvement in claims. Both the partition of procedural law and substantive law and litigation turning around claims are the great progress of law science.Because of the present legislation and some views in academic circles, it is quite necessary to reflect on the idea that protecting real right by tort liability. That weather it can give birth to civil liability or not should be the natural result of the development of civil rights and obligations. So it should not raise the result to civil rights and obligations. Measures of civil remedy should be involved according to the logical structure of civil science and the scientific way of thinking of civil claims. Our academic circles have received a lot of illegal factors, such as the economic package plan, political comprehensive treatment, property and tort law in Anglo-American law, effects of national power, the effect of black-and-white thinking mode, and the parties’exigent mood to protect their rights. So the idea that protecting real right by tort liability comes into being. These factors together cause the especial attention on synthesis and induction of the forms of tort liability in civil legislation. It seems that enough forms of tort liability can really attach importance to rights. This in turn led to the result which made light of the character of private law and progressive sense of claims, which brought on the overspreading and upgrade of obligations in civil law system.In the Tort Law of the People’s Republic of China, the form of tort liability also includes apology, elimination of consequences and restoration of reputation, and they are deemed to be the non-property remedial measures for violating the personality rights. For the torts of the personality rights and the property rights are so different at ethical level, so the remedial measures should be different too. The torts of violating personality rights means the damage of the subjectivity of human, so we cannot debase the measures’degree imitating the measures of real rights. But the measures are same apparently on legal system, so a lot of people think that the law can regulate the personality claims and the form of tort liability at the same time for relieving the harm of torts for law limits. Firstly, the opinions of personality rights character are different, neither how should the civil code arrange the personality law, so we cannot have reached a consensus on personality claims. Some scholars said the personality rights are right of property dominion, so they can do the illation base this point, and get the conclusion that personality claims. But, in fact, the personality rights are imperium, not the right of dominion. Tort liability forms can relieve the damages of the torts on personality. Secondly, what’s the tort liability form of violating personality? At least, the apology tort liability form should have been introspected. Apology is a ethical liability, so it cannot be a legal liability in practice. We cann’t reach the conclusion that apology tort liability form is reasonable according to enforceable judgment and the party’s needs. For apology is personal and punitive, it should not be a civil liability form. We have to clearly see that it is not more tort liability forms, better the relief of tort damage. Of course, the amount of the forms of tort liability doesn’t mean the degree of protection of civil rights.