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Research on Illegality of Delictum

Author: AiXiaoZuo
Tutor: MaXinYan
School: Jilin University
Course: Civil and Commercial Law
Keywords: Tort Illegality Fault Legislative model Draft Civil Code
CLC: D913
Type: Master's thesis
Year: 2005
Downloads: 481
Quote: 2
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Abstract

Illegality is one of the essentials which determine whether an act canconstitutes delictum, which affects whether the person infringed on can havethe rights of gaining compensation. There are two patterns about constitutivecomponents of delictum in continental legal system, namely German patternand French pattern. The German pattern holds that constitutive components ofdelictum includes: act、infringement on rights of other person、damage、causation、illegality and cases eliminating illegality、intention or negligence.The French pattern holds that it includes: damage、causation、act whichcauses damage (fault or non-fault). The difference is that in the French patternabsorb illegality of act into fault and grant discretionary power to judges.Whatever the pattern it is, illegality of act is embodied. The difference iswhether to take it as one independent essential. The topic of this article is toclarify the independent status of illegality of delictum and to analysis its placein constitutive components, so as to coordinate the illegality essential and theother components.It analyzes the concept of illegality in preface, and suggests the conceptof illegality of delictum. Meanwhile, the article analyzes the roots of delictumdissension. Then it explains that the conflict of interest is the essential root.Thus,torts of law should protect both sides’reasonable claims, not merelyconsidering the injured party or injuring party. Then the article gives a simpleexplanation of its correlative problems such as delictum act, liability ofdelictum and principles of attributing liability.The first part explains the position of illegality. Firstly, it introduces thedispute of whether illegality is independent. Secondly, it differentiates andanalyzes the doctrine of illegality independence. Finally, it makes clear thesignificance of illegality independence. From the consideration method ofillegality, the article points out that what illegality matters is what a personshould consider in normal conditions. Such thinking process includes standardfor ordinary people and the attention obligation he should fulfill. German lawadopts the act standard of people with the same profession and age. Theanglo-american law adopts the one of people with prudence and sedulity,which can judge the act of the most people. And it is a standard he can reach,because the person can be more prudent and careful with enough attention.The standard can stimulates people to avoid damaging others with his best, soas to guarantee the act safety and peace of social order. In essence, what lawprotects is not only specific social norm relation, but also interests behind law.Taking illegality as essential of delictum can make the act standard and theinterests protected. Furthermore, it is of benefit to explain the facts whichdelaminates illegality and also to make the system of attributing liability intorts law. The differentiation between illegality and can guarantee the freedomof acting to utmost. The independence of illegality and to be placed prior tosubjective essential can differentiate objective judgement from subjectivejudgement and establish subject on objective, which is more logicallypersuasive.The second part further analyzes the position of illegality in essentialssystem. Based on the three level of constituent components in German law andexplanation of it, the article points out the criterion of illegality judgement andprocess and makes facts delaminating illegality. Illegality is objective factscorresponding to mens rea of people and belongs to objective essentials, whileintention and negligence belongs to subjective one. The judging process isconducted by accordance、illegality and incapability. Then whether their existsdamage and facts delaminating illegality should be considered.In the third part of the article, it describes the relations between illegalityand fault. This is the kernel in establishing the independent element of theconcept of illegality in tort law. The article analyzes the connotation of thefault and illegality from the comparative law angle and puts forwardapprehending the concept of the fault again. That is to confine the faultconcept to morals evaluation range, while equate the intention and negligence

Research on Illegality of Delictum

Abstract

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