Research On The Illegality Of Tort Liability

As respects the constitutive elements of tort liability, the dispute has been between the theory of three basic elements and that of four basic elements since the issue of General Principal of the Civil Law. Its focus is on whether illegality serves as the constitutive element of tort liability. The difference of these two theories lies in scholars'understanding of illegality and fault. The tort law in China does not bear "illegality"; however, illegality places an important role in the conditions of tort liability, despite that different understandings concerning illegality exist no matter in France Law, German Law or Chinese Law.Tort law in modern Civil Law laid stress on individual standard, based on free will, which argued that the basis on which the doer bears the obligation of compensation is subjective culpability; Tort law in contemporary Civil Law emphasizes society standard, attaches great importance to the maintenance of social security as well as legal remedy provided for the injured party, through the socialization of private law, and makes compensation for injury the major value orientation. Traditional tort liability has failed to work efficiently in the face of contemporary risk society. Ordinary duty of care is a way to judge a doer's fault, expand the reasonable scope of liability for fault so as to maintain its role in contemporary tort law, which reduces the tortfeasor's subjective culpability to minor status. Moreover, indirect torts and negative acts take the infringement of ordinary duty of care as the criteria for illegality, which leads to the theory denying the role of illegality as an independent element. It argues that the criteria to differentiate illegality and fault tend to converge and fault will assimilate illegality. However, illegality, on the premise of distinction between subjective and objective illegality, evaluates objective acts, categorized into objective liability, while fault is set down to subjective culpability, categorized into subjective liability. The convergence of the criteria of illegality and fault in judging some torts does not necessarily indicate that their criteria identify with each other. Subjective liability or fault, to a certain degree, contracts objective liability or illegality. Even if objective criteria are used to judge the fault, it cannot change the fact that fault belongs to subjective liability.In scientific theory, illegality and faults can and should be distinguished. They should perform their own functions, which clears whatever prevents illegality from being the independent element; besides, the independence of the elements of illegality conforms to the sources the Chinese law has resorted to, is good for the juridical practice, and adapts to the changes of value orientation of the contemporary tort law, balances the interests of tortfeasor and victim, and finally prevents the appearance of blind spot of investigation in terms of law, owing to the invalidation of the elements of illegality. We can conclude that the independence of the elements of illegality is beneficial.The tort law in China does not make the independent role of illegality as the element of tort liability clear-cut and bears no "illegality". The shortage of relevant theories and arguments inevitably causes the confusion between theory and practice. The proper way is to truly restore the role of illegality as the independent element in the establishment of fault tort liability...