Tort Concept Definition

The tort is a concept without the final conclusion up to now. Defining the term of "tort" is difficult because of the limitless variety of tort, which becomes generally acknowledged. Most scholars of the Continental Law System construct the concept of the tort based on the code of his own country. They stated their views by laying special emphasis on constitutive requirements of tort liability. Most scholars of Angle-American Law System define the term "tort" on the basis of characteristics of tort or one of the constitutive requirements of tort liability. To sum up, there are several doctrines such as: violation to legal obligation doctrine, responsibility doctrine, fault doctrine and damage doctrine etc.I think tort is a concept different with tort liability. It has its special constitutive requirements. It is tort's superficial aspect that inflictor invades others' rights or interests without legal and proper argument; It is tort's connation that the act violates the civil law in essence. The so-called tort is a kind of factual behavior that inflictor invades others' rights or interests without legal and proper argument, and tort's illegality is judged in accordance with law or the social common ideas.The connation of the tort can be divided into three levels:1. Invasion has a different concept with damage. The broadly defined damage includes invasion which refers to the fact that the rights and interests are invaded, and contains the inner value judgment factor. The narrowly defined damage generally refers to real losses that cannot be proved. Invasion is the constitutive requirements of tort, yet the narrowly defined damage is the constitutive requirement of tort liability. The conclusion is mainly based on "cause suit tort" of Angle-American Law System and "damage to biology" of Continental Law System. Among these cases, encroaching on rights and interests itself constitutes tort as well even if it doesn't cause real losses that can be proved.2.Tort can't exist without illegality. Firstly, there is high consistency between the etymology of the tort and illegality. The word tort reflects a kind of bias on law or a certain social generally acknowledged moral standard, so does illegality. Secondly, illegality is the essentials of all torts. The illegality of the act violating the prohibitive norm is determined according to law directly. The illegality of the conduct not violating the prohibitive norm is judged by the consequence that rights are invaded and the breaking the law in essence. The civil law is characterized by autonomy of the private law. So the illegality cannot be made the regulation by the law once and for all.3.The fault is a concept different from illegality in essence and can exist separately, which is a kind of guess and judgment based on the social general idea to the inflictor's psychological state when invading. All the doctrines of subjective fault doctrine, objective fault doctrine or the fault doctrine combining subjectivity with objectivity claim that judgment target of fault is the inflictor's subjective psychological attitude. The difference of the three doctrines lies: Subjective fault doctrine is judged by the inflictor himself; Objective fault doctrine is judged by the attention ability of " rational person" ; the fault doctrine combining subjectivity with objectivity is judged by the inflictor's external behavior. No matter what kind of standard is adopted, it is only a kind of means but not purpose of the inflictor's psychological state. So, seen from the purpose of judgment, the fault remains the " subjective fault ". It is different from the objective and external illegal act. Though fault and illegality are related closely, the two are concepts with different essences after all. The Emphasis on the judgment of inflictor's behavior is different: The fault judge if the inflictor "should notice" and "can notice" but did not notice by considering the inflictor's objective and external behavior as judged material and regarding common people's attention obligation as the j...