On The Judgement Of Faulty Behavior In Tort Law

Most of Chinese scholars hold that fault is a state of mind that should be condemned . So the concept of fault is a subjective one .But the viewpoint of fault above does not accord with the practice in the real life. The theory of subjective fault is also not effective in the judicial practice . Meanwhile, The concept of fault tends to refer to be something out of the mind. "Fault", is no longer refers to the state of mind, but a so-called "objective negligence".As there are no definite provisions about the criterion for the judgment of negligence in Chinese laws and judicial interpretations, different scholars have different views. In this paper, I discuss the issue about the concept and nature of fault, the criterion for the judgment of negligence . I hope that my paper will be good for the perfection of the tort theory or tort law and the judicial practice.This paper can be divided into four parts.The first part is an overview of the development and evolution of tort law. Tort law originated from Roman law. Because Roman Empire perished, Roman law was replaced by German Custom Law. Europe experienced dark Middle Ages. In the beginning of 19th century, France and Germany enacted the code of civil law respectively . The tort law adopted the objective criterion for the judgment of negligence at the time. No fault, no liability. This is similar to the subjective fault theory in the criminal law.The second part analyses and evaluates the tort theories about fault. The subjective criterion for the judgment of negligence focuses on the protection of freedom , not conducive to the protection of the legitimate rights and interests of the victims. The objective criterion for the judgment of negligence focuses on the social order and safety But the objective criterion ignores the personal factors. So it is not conducive to minors, and to protect the rights and interests of vulnerable people like the disabled and children. As to the theory of economic analysis, it ignores the moral factor, personality. Moreover, judges do not have the knowledge and ability to conduct economic analysis.Part three and Part four is the core of this paper.The third part focuses on the concept of fault and the essential conditions for being an act of fault. The author holds that fault is a concept to evaluate a person who violates the legitimate duty which includes the evaluation of violating law.In the forth part, focus on the defenses and the criterion to decide whether a defendant has violated his duty of care to the plaintiff, or that to decide negligence, is the "reasonable person standard". Actually, the reasonable person standard is an objective one. Whether the behaviors of a defendant are negligent is judged by an outside standard and not by the subjective capability of the defendant himself.the criterion to decide whether a defendant has violated his duty of care to the plaintiff, or that to decide negligence, is the "reasonable person standards". Actually, the reasonable person standard is an objective one. Whether the behaviors of a defendant are negligent is judged by an outside standard and not by the subjective capability of the defendant himself.The virtue of this paper is as follows: 1. redefined the concept of fault. 2. Discuss the need for distinction between intent and negligence. 3.Discuss the defenses against fault . 4. Discuss the "reasonable person standard", the criterion to decide negligence.