Subjective Infringement: New Breakthroughs In The Traditional Tort Concepts - An Analysis, From The Instant Violations Angle

Imminent infringement originally belongs to concepts of intellectual properties. It is a ready behavior that intends to infringe upon previous rights (mainly refers to intellectual properties) and nearly causes damage. Recently cases about imminent infringement became more and more, and the fields that cases referred to became broader and broader; moreover such conditions appear severer and severer. Imminent infringement has apparent actual dangers, and has a close touch with the possible successive real tort; imminent infringement will cause previous rights to suffer irretrievable and irremediable damage once it transforms into a real tort. So it is a meaningful thing to make theoretical researches on imminent infringement in order to regulate such phenomena by means of the tort laws. However current conventional tort theories exclude imminent infringement from tort laws, because there are essential conflicts between imminent infringement and conventional tort theories: the conventional tort theories emphasize damage and demand that a tort responsibility must include four elements; imminent infringement belongs to a ready behavior, so it has no damage consequences and doesn't have such two elements as damage consequences and the relation between cause and effect that a tort responsibility demand. It is the very purpose of this article that how we can theoretically settle the above essential conflicts and involve imminent infringement into the tort laws.This article altogether includes five parts. In the first part, it primarily discusses the challenge that imminent infringement gives to the conventional tort theories, and comprises the brief about conventional tort theories, the present situation of imminent infringement and relative legislation, the problems that imminent infringement raises toward the conventional tort theories. In the second part, it talks about the theoretical fundaments of Theory of Subjective Torts, and analyzes why imminent infringement belongs to torts and can be involved in tort laws, from the angles of the jurisprudence and the legal economy. In the third part, it discusses the conflict between Theory of Subjective Torts and Theory of "No damage, no responsibility"; it reviews that Theory of "No damage, no responsibility" has many mistakes, and deems that the subjective torts shouldn't drift away outside the tort laws because of Theory of "No damage, no responsibility". In the fourth part, based on Theory of "The structure of a tort includesthree layers", it analyzes the internal structure of a subjective tort--namely a behavior,the behavior infracts legal interests, intention and so on. In the fifth part, it talks about the civil legal consequences of subjective torts; firstly it settles the contradiction between a subjective tort and civil responsibility of torts with such an opinion as "a subjective tort causes civil liability, not civil responsibility of torts", and then simply discusses the relative issues about burden of proof. In the epilogue, the author emphasizes again that imminent infringement infracts specific legal interests and corresponds to the essence of torts, so tort laws should break conventional tort theories and accept imminent infringement as a tort.This article roughly follows the thought from observing the concept of imminent infringement, attributing imminent infringement to subjective torts, analyzing theoretical fundaments of subjective torts, to revising conventional tort systems, and abides by such a route as "raising the problem, analyzing and resolving it". It primarily uses such study methods as the comparative law, the demonstration law, the interest law, the jurisprudence and the legal economy. The author thinks this article includes the below innovatory points:①The subject is novel. Imminent infringement isn't a new concept in civil law, but in the legal circle there are many controversies about whether imminent infringement belongs to torts and it is involved in tort laws; the articles that deep research such controversies are quite few.②The research angle is innovatory. The author starts from the essence of torts, and puts forth such a novel opinion as "the essence of torts is infringement"; then referring to the novel research angle, the author adequately demonstrates that imminent infringement is infringement, corresponds to the essence of torts and should be involved in the tort laws.③The research methods are innovatory. The author applies such research methods as the jurisprudence, the legal economy, the interest law and the comparative law; the research eyesight is multi-discipline and comprehensive, as is apt to analyze problems in a scientific and all-round way.