On The Relationship Between Fault And Illegal In Tort Liability

The dispute over the "three elements" and "four elements" of fault tort liability has existed since the promulgation of the General Principles of Civil Law in China,which means that "three elements say" and "four elements say" have been in dispute in our country for a long time,despite such a long period of controversy,but in the author's view in our country in the end to adopt "three elements to say" Or "four things to say" still have a long way to go.Regarding the "three elements said" and "four elements to say" between the focus of the dispute is whether the law is as a fault infringement of the composition of the elements,the French jurists believe that the fault has included illegality,and the law is very good absorption in the fault elements,so in the French Civil Code is the use of "three elements said",and in later the German Civil Code In,the lawlessness becomes an independent element to give a positive answer.German jurists believe that the elements of illegality should be separately as the constituent elements of tort liability,there is a great difference between the two,should not be confused.In the end in our country to adopt the "three elements to say" or "four important things to say" did not form a consensus,the reason for this situation is also that the relevant scholars in our country have different understanding of illegality: some scholars think that the principle of fault has included the principle of illegality,the principle of illegality is part of the principle of fault.But some scholars think that the principle of illegality is a separate element of tort liability independent of the principle of fault.Let us put aside the views of the scholars,the author believes that the principle of fault and the principle of illegality,whether in extension,connotation and function,there are very big differences,the fault element mainly refers to the perpetrator's behavior in a subjective psychological state,and the illegal element refers to the perpetrator's behavior whether there is a law,Regulations and moral contrary to the situation,on this point,there is a clear difference between fault and illegality,in the author's view is only this,we can determine that fault and illegality are the independent components of tort liability,there is no fault absorption of illegality.China's current "Tort Liability Law" does not make a clear statement of the elements of illegality,nor clearly define the illegality as china's tort liability components.However,we point of view from the attitude of legislators to illegality,the author thinks that although there is no law provisions to be separately clear illegal,but the legislators on the illegal elements or hold a positive attitude.This attitude is not only manifested in the theoretical recognition,more important point is that in our country's judicial practice,when the judicial workers judge the tort liability,often will be the perpetrator's behavior illegal to consider,in order to fully protect the rights and interests of the tort responsible person and the infringer.Since the elements of illegality have been applied in practice,it is very important to consider the elements of illegality into the Tort Liability Law from the legislative level to realize the ultimate goal of legislation and to show fairness and justice in judicial practice.