Comparative Study On The Norm Mode Of Tort Law

The main mission of the tort law is to balance the clash of behavior freedom and the right protection, but in the realm of private law, giving a certain benefit with superior position, then means that another benefit yields. So, what norm mode is chosen by different country's tort law, usually reflects the different value, such as economy, politics, culture...etc.Tort law of English and America based on the history tradition of the law origin, case law of writ system, etc., choose the stipulation by samples mode. The advantage of the stipulation by samples mode consists in the type of the law concrete, clear and definite; it is easy to operate judicially. But being in need of the general clause of tort law, the inevitable protection toward rights is not very thoughtful; although this weakness can be made up be the vivid case law, the common law's traditionalantimony--"stare decisis doctrine" and "break the precedent", makes tort lawunstable and unforeseen. And from our country's historical tradition of the civil and judge's quality to see, the stipulation by samples mode can't be accepted by our country, but the method of making tort typical can be used.Civil code in France is the loyal successor of Roman law, but on the tort law, it abandoned the stipulation by samples mode of Roman law, and founded the generalized norm mode of tort law. The existence of general clause, makes the tortlaw contained, meets the request of the law--stability. But the tort law of Francedid not make the general clause typical, which made judge make law widely. Moreover, in France, although such phenomenon appear that the law of contract penetrate the law of tort, through analysis, we can discover these phenomenon is not caused by the norm mode of the tort law, but by the defect of concrete tort system. So the existence of general clause, not only makes the tort law contained, but also makes the law of obligation system clear.The norm mode of the tort law in France became vogue of the time, but it is abandoned by German civil code. The German civil code edits think the abstract of the generalized norm mode hands over the questions that should be settled by legislative body to judicial organ, just covering up the difficulty of the problems.Under the influence of historical school of the law, Kantian philosophy of law, superior legal interest, and doctrine of a legally prescribed punishment for a specified crime, it founded the compromise settlement mode. The advantage of the compromise settlement mode consists in providing accurate constitutive requirements for law; the weakness is that its scope of Protection is too narrow. For making up this, one hand, the German judicial branch established such concepts as "trade right", "general personal right", which not only make people elusive, but make law conflict; the other hand, it has to regard bona fide doctrine as foundation, established many system, used the law of contract to make up the weakness of tort law; these systems make law system confusion.Each norm mode of tort law has advantages and weakness; so which one can be chosen in our country? We think "the general clause adds typical tort" norm mode would be the best one: the general clause can make tort law contained, and through making the general clause typical, not only is easy to right protection, but to judicial practice.