On The Legislative Mode Of The Scope Of Object Protected By Tort Law

The scope of protection is an important legislative and judicial issue in tort law. This issue relates to the choice of legislative mode. We should choose the mode that suitable for our legal traditions and judicial status。By comparing the German model, French model, the Anglo-American model, we know that any legislative mode has its own advantages and disadvantages. On the whole, the German model that the protection of the rights and interest is different is more suitable for our country。Diversity of civil interests determine the hierarchy of their legal protection. For those interests that closely related to the people’s lives will be expressly defined as rights and be protected fully by the law. Some of interests that not defined as rights by the law is also important. Therefore, the law should protected them in a certain way. This thesis hold the view that our country should establish the legislative mode that suitable for China’s legal traditions and judicial practice by learn from the German model. The whole thesis divided into four chapters besides the introduction and conclusion。Chapter one,Defining the concepts of Tort law. In our country, it comes to the subject of protection of Tort law will inevitably involve these three concepts which are "rights", "legal interest", "interest". This chapter will describes the origin and meanings of these conceptions in detail. We will learn that is not necessary to create "legal interest" in Tort law by comparing these three concepts. The object of Tort law is part of rights and interests. We should divided these protected rights and interests into "absolute interests" and "General interests" and protected them in different manner.Chapter two, analyzed the legislative mode of protection of Tort law. Interpret the enumerated mode, the abstract generalization mode and distinguish protection mode, and analysis the pros and cons of the three modes. The scope of protection of enumerated mode is the smallest while most beneficial for protecting the freedom of people. The scope of protection of abstract generalization mode is the widest and most beneficial for protecting the interests of victims,but it will limit people’s freedom. Distinguish protection mode is between the enumerated mode and the abstract generalization mode,it balance the plaintiff’s interests and defendant’s freedom.The third part is about the analysis of the protection scope of tort law in our country.It analyzes in detail the law of protection scope of our country related tort law, namely the article 106 of General Principles of the Civil Law, the article 1 of Judicial Interpretation of Compensation for Mental Damage and the article 6 of Tort Law which do not form a certain system and among which there are contradictions. Through the analysis of the above mentioned stipulation, it can be known that the legislation of the tort law in our country draws lessons from the legislative model of abstract summary which is not in conformity with the legal tradition and the judicial present situation in our country and has led to the emergence of the too board free discretionary power, the separation between judicial and legislative and the generalization of rights.The forth part prospects the scope of protection system of the tort law in our country which analyses that the enumerated mode and the abstract generalization mode are not suitable for our country. This part proposes that the object of tort law shall be divided into absolute rights and general interests which shall be protected through different ways and raises the criteria for distinguishing between absolute rights and general interests on the basis of the equity division model in Germany.The practice to divide the object of tort law into absolute rights and generalinterests which shall be protected through different ways can give judges a certain amount of discretion space under the premise of maintaining legal certainty as mush as possible and reduce the legal lag as much as possible. The combination of form and substance is better to protect the interests of the victims and to protect the freedom of behavior.