Research On TheIllegal Elements Of Tort Liability

Tort liability form of illegality in academia and practice in our country there is a huge controversy,investigate its reason,is because scholars and related legal person understanding of the tort liability law in our country is not the same.The tort liability law of our country came into effect on July 1,2010,and the second law defines the civil rights protected by the law.Among them,article 6 to article 10 stipulates the three principles of imputation in China's tort liability law,namely the principle of no-fault liability,the principle of presumption of fault liability and the principle of fault.However,there is no clear definition of the illegal elements in the elements of tort liability.The origin of this problem comes from Germany,and some scholars in France have come up with some representative ideas,namely,the principle of illegality has been included in the principle of fault.In our country,scholars and relevant people hold different opinions.Some scholars believe that the principle of offense has been included in the principle of illegality,while some scholars believe that illegality should be a component of tort liability alone.Therefore,whether the principle of illegality can be used as an element of tort liability is the focus of the dispute.Fault elements and inclusion and exclusion of illegality either and have quite a big difference,on the function requirements of fault liability refers to the person in the behavior of a kind of subjective condition,fault applied to judge whether the offender in the behaviors has a subjective will thus have the moral or legal abuse can blame on sex.The function of illegality is far from the function of fault,and the function of illegality aims at the reasonable regulation and balance of the freedom of rights and interests and behaviors.In the case of the subjective fault of the actor,it is more important in the case of no-fault infringement.The current tort liability law in China does not explicitly list the illegal elements in tort liability,but it can be seen that legislators have a positive attitude towards illegality.In the judicial practice in our country,illegality is also often used,so whether in legislation explicitly written into the act of tort liability about whether can achieve the purpose of the legislation,it was also about as one of the cases in the judicial practice whether justice can be achieved.This article through to the tort liability of illegality in the basic introduction,the illegality of the review and evaluation,analyses the feasibility and necessity of illegality independent,the last of illegality independent legislative proposals are put forward.This article is divided into five chapters,of which the first chapter of this article research background,research purpose,research significance,illegality independent of the status quo at home and abroad and the research and the research content of this article.The second chapter introduces the basic connotation of the illegal elements,including the concept of illegal elements and the essence of the illegal elements.Then it introduces the development of the illegal elements,including the advance of the illegal elements in the early stage,the period of the late fault absorption,and the independence of the legislation.Then,the three criteria of illegality are introduced,namely,"the result is illegal,""misbehavior" and "compromise".The third chapter of illegality independent speaking,by means of the contrast first said to illegality independent views and introduces the legislation and evaluation,and then said to the illegality in the negative and the basic idea of legislation are introduced and commented on and on.The fourth chapter analyzes the independence and feasibility of illegality.The fifth chapter puts forward the legislative proposals for the independence of illegality.