Independent Problem Research Of The Law Of Tort Within The Civil Code System

In our country code civil formulation process, the law of tort prepares continuously in the code civil system status question was disputed. The fundamental research writings many, speaking of the law of tort in the code civil system constitution status, induces has four viewpoints: First, follows civil law systems the tradition, puts in the law of tort in the law of Obligation, first performs as the Obligation occurrence reason to stipulate; Second, follows our country civil law tradition, constructs the law of tort under the civil liability system; Third, in the form lets the law of tort to become a independent part, but the materially still received the restriction of law of Obligation, and still took it as the Obligation, this kind of theory might be called relatively independently theory; Fourth, lets the law of tort to become a independent part in the form , and is separated from the restriction of law of Obligation, realizing the independence in the civil law scope, this kind of theory may be called absolutely independently theory. By whether is independent is the standard, these four kind of modes may be divide into not independent mode and the independent mode. In the code civil draft process, the law of tort becomes of independence partial calls to be highest, but independent mode interior because the independent degree difference also has struggle as the relative independence and the absolute independence. Solves the independent mode interior dispute, there are three levels question: First is the basic theory, is the connotation of Obligation responsibility and the relations between them ,this is the bases to solves the theory disputes and other questions; Second is the general theory, also may say is the legal consequence nature of tort, this is provides the theory strut for the legislative choice; Its three is the question legislative choice, this is the specific mode stratification plane question. These three questions according to the proof priority, for the foundation, layer upon layer progressive mutually, finally infers absolutely the independent mode is establishes the law of tort to be most scientific in the code civil constitution mode and should be accepted by the legislator. This article elaborates the key point lies in the connotation of Obligation and responsibility and the relation between Obligation and responsibility .In the writing process of this article, the author also tries hard to realize these two aspects breakthrough, certainly, because of the weakness of author'theory foundation and acquisition of information hastiness, this article is insufficient in the proof to the relation between responsibility of tort and the claim of real right, all these problem need for the further study and the research.