The Unlawfulness And The Fault In The Elements Of Genera Torts Liability

For the civil law scholars from different states, it’s always been their hotresearching and discussing issue that whether or not the Unlawfulness independentlyforms the constitutive elements of tort liability. Affected by the former Soviet Union,most of the jurists in our country insist the theory of four elements that theUnlawfulness possess independent status in the elements of torts liability. To claritycontent and criterion of the Fault and the Unlawfulness is the prerequisite andfoundation to distinguish them. Both the theory of form Unlawfulness and theory ofsubstance Unlawfulness accept that essence of Unlawfulness is to violate the legalinterest. The Unlawfulness is not the results of the illegal action but obligation ofillegal action. The essence of the Fault is subjecive elements of torts. The constitutiveelements of tort liability are the foundation of tort law, Tort Liability Law of People’sRepublic of China has been passed in2009, though leaving a space for moreresearching. This analysis explored the issue and put forward their views andrecommendations.The paper includes five parts:The author put forward the reasons why Unlawfulness forms the discussingfucus of tort liability law, indicates the issue which will be discussed in this paper.Chapter Ⅰ and II State the basic theory about Unlawfulness and Fault. Chapter Istudies the history of Unlawfulness and the Fault, and the reasons for the Unlawfulness borned in Germnay. Chapter II analyzes the basic theories ofUnlawfulness and Fault, and the relationship between the two concepts.Chapter Ⅲ selects the typical countries of Continental Law System andAnglo-American Law System, reserches the legislative state of Unlawfulness in theirlegal system by using the comparsion method, there are reference value for China.Based on the above, in Chapter IV, the author researches the history of tort lawlegislation in China, and the charactristic of the controversy of Unlawfulness.In chapter Ⅴ, the author concludes the ideas of the paper, the Unlawfulness has tobe one of the elements of tort liability, because of its value and functions.Overall, the Unlawfulness and the Fault have the same status in the elements oftorts liability. The Unlawfulness and the Fault separately from the objective aspectsand subjective aspects ensure that the elements of torts liability are scientific andcorrect. We should affirm the unlawfulness’s independent status in the elements ofgenera torts liability.