The Observation On The Position Of The Concept Of Illegality In The Torts Law

It has been a long-term debate in the torts law that whether the concept of illegality should be considered as an independent constitutive element, and this debate also became one of the most important problems in the process of drawing up the tort liability law in China.About this problem, the three-class constitutive element structure which has been set up in the German law has been challenged by new theories and legal practice in the long-term social development.For China, whether the concept of illegality should be considered as one of the constitutive elements has great significance for our legal practice.According to the current research, the four-constitutive-element theory which has been in the dominant position in Chinese torts legal research explicitly put the concept of illegal behaviour in the process of responsibility identification. Although this theory has always been challenged by the three-constitutive-element theory, it can be the start point by this paper to clarify the distinct opinions between these two theories. So this paper will focus on how the concept of illegality is being illustrated in Chinese legal practice. If according to the four-element theory, the concept of illegal behaviour is being widely accepted as the constitutive element; then what kind of function of this concept which is being applied in the process of responsibility identification is the focus for this paper.So the process of the case observation is not only the observation on the form of the illegality concept in Chinese legal practice, but also a kind of appreciation to these two theories.From the theoretic perspective, no matter whether the concept of illegality is being considered as the constitutive element, the most important problem to be solved is how we differentiate the concept of illegality from that of negligence. The answer to the above question will directly determine whether the concept of illegality can be viewed as the constitutive element. So based on the cases which apply the concept of illegality to interpret, this paper will emphasize on the relationship between these two concepts so as to draw a preliminary conclusion.In order to answer the above questions, the structure of this paper is that:the definition of the illegality is the first part of this paper, and then the difference between the definition of the concept of illegality in China and that in German and Japanese law. In the last of the first part, as to answer the most important question of the relationship between the illegality and negligence, this paper makes a theoretical review of these two concepts' relationship; then does an introduction to the theory of the distinction between the duty of interior care and that of exterior care in German law.In the second part, the emphasis of this paper is the sum-up of Chinese cases which apply the concept of illegality. In this part, this paper summarizes the cases from three channels and makes a preliminary conclusion that the concept of illegality is being used in defining the protection scope of torts law, limiting the liability when absolute right being impinged and identifying liability in defamation cases.Based on that, the third part illustrates the relationship between the concept of illegality and negligence from the practical legal perspective.Based on all the above illustrations, the last part draws up a conclusion that the concept of illegality should not be considered as the constitutive element in the process of liability identification. Because on the one hand, the case categories which the illegality concept are applied are not universal enough to make this concept become a constitutive element; on the other hand, from the perspective of the relationship of the concept of illegality and negligence, it is difficult to differentiate the illegality from the negligence, and moreover, from the perspective of comparative law, through expanding the content of negligence, releasing the negligence concept from the traditional subjective range can replace the concept of illegality in the process of liability identification. So in this sense, it is non-significant to make the concept of illegality independent constitutive element.