Study On The Elements Of Illegality In The Constitutive Elements Of Tort Liability

Through analysis of regulation of typical countries of Anglo-American Law System andContinental Law System, there is substantial difference about the constitutive elements of tortliability, France law of tort argue that objective illegality and subjective fault are includedelements of fault, while Germanic law of tort argue they are independent in each other; andthere is inseparable relation between them. In Anglo-American Law System, focusing duty ofcare, the system of tort liability rarely care about illegality. Therefore, whether illegality is anindependent elements of tort liability depends on what a country wants to convey inlegislation and theory. When we discuss illegality, we not only care itself, but also thinkhighly of the coordination between the function of the elements of illegality and the functionof the element of fault.In the two fundamental civil law--"the civil law "and " the tort law"--which are the basisof regulating tort liability, we could see the national legislation on the elements of illegality,so we should adhere to our country’s legislative situation so as to be in keeping with tort lawin our country. In this thesis, we conclude that the element of illegality is not accepted in "tortlaw" by legal explanation. Therefore, we can’t learn the Germanic legal practice that theelement of illegality is independent elements according to the national legislative policy andlegal principle’s basis. However, The transaction security duty which is formed in Germaniccourt’s practice weaken the achievement of the function of the elements of illegality, whichhave some utility for our country fault judgment.According to the analysis of fault conception, combining with the rules of "tort law",when we not accept the element of illegality, we adopt the element of fault limit the scope ofthe establishment of tort liability, therefore, the key of the problem is form the judgment rulesof fault. From "tort law", the judgment rules of fault include supposed fault and the violationof the safety-guard duty, these two rules can be unified the violation of the duty of care inWagner’s opinion which should be classified in our country’s "tort law" aiming at consideringthe different care extent of different people, so as to make the achievement of the substantialjustice and echo to the actual acquirement of the risk society.