On The Distinction Between The Constitution Of Public Law And Private Law

In jurisprudence of China, the most popular saying of the constitution of liability says that the constituent elements of liability generally includes the subject, illegal behavior, the damage, causality and fault. But it does not make a distinction between public law and private law, which is the most basic type of legal distinction, led it makes sense just on some legal relationship. So it is not accurate.The constitution of liability refers to the specific factors that should be considered when recognizing the legal liability and it includes the two categories of necessary elements and non-essential elements. Following the binary division of public and private law, perhaps we can try to transform the most popular saying of the constitution of liability in jurisprudence into the constitution of liability of public law and private law. By this way, we can make the theory of constitution of liability more reasonable, accurate and scientific.The liability of public law is based on morality and the liability of private law is based on utilitarian. As public law, criminal law and administrative law are with a strong moral character, thus the punishment is the core purpose of the liability of public law. As private law, civil law is with a strong utilitarian; therefore the compensation is the core purpose of the liability of private law.The essential elements of constitution of liability of public law include fault, the subject, illegal behavior and the non-essential factors include the damage and causality; the essential elements of liability of constitution of private law include damage, behavior and causality, non-essential elements include fault and the illegality of behavior. Distinction between the constitution of liability of public and private law not only has a theoretical value, but also has an instructive meaning of practice.Criterion of liability is not the basis and premise of the constitution of liability. Criterion of liability dose not determines the constitution of liability, but on the contrary, different constitutions of liability determines different criterions of liability. Criterion of liability derived from the constitution of liability of public law is the criterion of fault liability; criterions of liability derived from the constitution of liability of private law include three criterions, namely the criterion of no-fault liability, the criterion of fairness and the criterion of fault liability. The constitution of liability has a decisive significance for the selection of different types of liability.