Research On The Illegality Of Tort Liability

July1,2010implementation of" Tort liability law of The People’s Republic of China " does not expressly provided for the illegality should be contained of the tort liability constitutive elements, whether the illegality should be as independent constitutive elements of the tort liability, and What is the significance of the existence of the element of illegality, that is this paper is going to study the problem.The illegality should be as independent constitutive elements of the tort liability, that is illegality should be distinguished from the fault point of view had originated in Germany. Represented by France, however, some of the countries think that the illegality should be absorbed by fault. In our country, illegality as constitutive elements of the tort liability has been widely accepted and recognized by the academic circles. But some people opposed to this view, think that the fault should contain illegal.Whether the illegality should be as independent constitutive elements of the tort liability, the main problem is whether the illegality should be distinguished from the fault and exist independently. It should be said, as the constitutive elements of the tort liability, illegality and fault both in content, or function are not the same.Illegality refers to the behavior objectively contrary to law, it resolved is whether the objective behavior should negate evaluation. Fault refers to a subjective mental state of doer has engaged in some kind of behavior. The effect of fault is judge whether the doer has a legal and moral censure because who has abuse of the free will. The function of illegality is to give a reasonable balance to freedom to act and legal benefits protection. Especially in non-mistake tort and special tort cases, illegality has judgment function which is fault does not.The constitutive elements of the tort liability is more complete and scientific because of illegality. Therefore, illegality as the constitutive elements of the tort liability, its independent value can not be ignored, fault should not involved in illegality."Tort liability law " does not expressly written into the illegality of the provision, but it held a positive attitude to illegality. Illegality, not only has deep historical and academic background, but also has a good basis for judicial practice in our country, can provided important guarantee for the realize the legislative objective and functions of China’s " Tort Liability law". Therefore, illegality should also become one of the constitutive elements of the " Tort Liability law".