Victims’ Consent In Tort Law

The investigation on victims’ consent which is taken as a ground for elimination ofmisfeasance, inevitably leads to the discussion of illegality, especially when we talk abouteuthanasia. We should have a stereoscopic understanding of illegality. For example, theissue of euthanasia in one hand concerns humans’ autonomies ethically; it also concernsthe construction of the system of grounds for elimination of misfeasance in another hand.There are two main theories on the elements of tort liability in China, the theory of threeessentials and the theory of four essentials. They distinguish from each other mainly inwhether to adopt the illegality essential. Actually, the illegality essential is necessary forthe purity of theory and judicial activities. The concept of illegality under theresult-illegality theory is more independent and thoroughgoing. Moreover，referring Article823and826in German Civil Code, which provides a three-layer protecting structure ofinterests and rights, as well as Article709in Japan Civil Code, we can conclude that theconcept of illegality is not rigid, oppositely it can help build an elastic clause.Only thepure illegality essential can help support the exsistence of victims’ consent. Meanwhile, thediscussion on illegality depends on the value judgement by legislators and judicators.Therefore, the ethical foundation should be discussed, such as legal paternalism. As themost disputable example of victims’ consent, euthanasia could lead us to find out as manytheoretical problems as possible. The tension between humans’ autonomies and legalpaternalism keeps the victims’ consent in a reasonable range. Distinction between ethics ofjustice and ethics of good offers a method to think differently, which also hints that thesubjective or objective value can be surpassed. The interpretation and the detailed rules ofeuthanasia should take public policies into consideration. Euthanasia and legal paternalismagrees with each other in respecting humans’ dignity.