Research On Illegality Of The Constitutive Requirements Of Tortious Liability

Tort Liability Law of People's Republic of China has been passed on December 26,2009, the eleventh National People's Congress Standing Committee 12th meeting, and will be carried out on June 1st,2010. Like Property Law, the core of this law is to protect the private rights, and play a supporting role in the socialist legal system. Tort Liability Law is significant to protect the legitimate rights and interests of civil subject, prevent and punish act of tort, promote social harmony and stability. There has been many contentious issues during the legislative process of the Tort Liability Law, and the key point is that the composition of the elements of tort liability. Whether the illegality should be different from fault and exist independently. This analysis explored the issue and put forward their views and recommendations.The article is divided into six parts. The third part consist of the core of the article, which mainly describes the connotation and judgement standard for illegality of the constitutive requirements of tortious liability, the connotation and judgement standard for fault, and the comparison of illegality and fault.Whether the illegality becomes the independent composition of the elements of the tort liability is still a question. Scholars'main questions focus on the ambiguity of the connotation and criterion of the illegality, and focus on the difficulty of distinguishing the concepts of illegality and fault. To resolve this confusion, it is necessary to clarify their connotations and relationship between fault and illegality. Firstly, the author raises two issues from the case:what is illegality? What can be used to judge illegality? On this very glamorous and highly theoretical issue, this paper analyzes different opinions among many scholars:"illegality in form" and "substantial illegality", "erfolgsunrecht", and "wrongfulness". After understanding two pairs of doctrines'main contents and their mutual and corresponding relationship, the illegality's connotation and criterion for judging are clear to see. Seconldly, author analyses the connotation and criterion of fault, and gives objective analysis and evaluation of the two theoretical viewpoints on the fault of "subjective fault" and "objective fault".then, author distinguishes between concepts of "objective fault" and "objective criterion of fault", and author is positive that only through the perfect combination of subjective fault and objective criterion of fault, civil fault liability can be imputed properly. Finally, the author summarizes the several reasons to analyze the cognitive deviation on the illegal negativism to clarify the illegality cannot be absorbed by fault, and it must exist as an independent element. On the issue of independent value of illegality, the article expounds it in detail in three aspects at the end of the essay:independent illegality element contributes to strengthening objectivity and accuracy of judgment on tort liability; independent illegality element could better explain the causal relationship;independent illegality element is able to provide theoretical basis for justified subject; independent illegality element responses and propels our country's judicial practice.