The Study On Fault Of The Constituent Elements Of Tort Law

In the modern law of torts, tort liability for fault undoubtedly occupies a pivotalposition; and in tort liability for fault,"fault" is undoubtedly a core concept. It can besaid that since the birth of the concept of "fault" in the Roman law, the debate about ithas never stopped. Till the contemporary era, this controversy is becoming fiercerthan ever before: is the concept of "fault" a subjective concept or a objective one?Which standard should we adopt to determine it? The subjective one or the objectiveone? What is the relationship between fault and illegality, as well as fault and the dutyof care? Questions like these have plagued many civil law scholars for a long time.This paper precisely does research on fault from these aspects above.The paper is divided into four sections and does researches on fault from fouraspects, namely the history of the fault, the analysis methods and criteria of fault, therelationship between fault and illegality, and the relationship between fault and dutyof care.In the first part, the paper mainly researches the birth and development of fault.This part is divided into two small parts, the first one discusses the the evolution offault in Continental legal system from its birth in the Roman law to its becoming theguiding principles of the modern law of torts; the second part discusses thedevelopment of fault in the Anglo-American legal system from its birth to itsbecoming an important part of the law of torts in Anglo-American legal system.Through deep analysis of the development process of fault in two legal systems, thetrajectory of the developments and changes of fault are clearly in front of us.In the second part, on the basis of an overview of the concept of fault, the paperstudies three analysis methods about the concept of fault: subjective analysis method,objective analysis method and the combination of subjective and objective analysismethod. It also studies two kinds of criteria about fault: subjective criteria andobjective criteria. Based on a critical analysis of the above doctrine, the paper makessure of the correctness of the objective analysis method and the objective criteria.In the third part, the paper illustrates the relationship between fault and illegalityin several major countries from the view of comparative law, and then proposes thatin the condition of considering fault as an objective concept, fault should absorb illegality in both aspects of connotation and function.In the fourth part, the paper further clarifies such issues related to fault as theform distinction of fault and the level of fault. And by studies of comparative law on"duty of care" in several major countries, the paper makes sure of the relationshipbetween fault and duty of care and their differences in the institutional structure.Finally, the paper concludes that the nature of fault in the law of torts is actually "abreach of duty of care".In short, I firmly believe that no matter researched from the course ofdevelopment of fault, or from the purpose and development trends of modern law oftorts, fault should be regarded as an objective concept and judged by objective criteria.On this basis, the form distinction of fault and the level of fault should be graduallyweakened, and illegality should be absorbed by fault. The duty of care should bemade a general concept in the law of torts keep a close relationship with fault. Onlyby this way can we eliminate the chaos about fault in the theoretical and practicalfields and clear up the confusion around fault.