Civil liability cannot be stipulated in the general principles of civil law in isolation, but should be combined with civil rights and obligations. In this regard, we can refer to Chapter II of the Russian Civil Code and Chapter VII of the Taiwan Province Civil Code, [13], and add a chapter entitled "Basis for the emergence of civil rights and obligations, the exercise of civil rights and the commitment of civil responsibilities". This chapter is a general provision on civil legal relations, which should be placed in Chapter II (Chapter 1 is the basic principle of civil law). This chapter is divided into three sections. 1 The basis of civil rights and obligations is as follows: Natural persons, legal persons and other organizations mainly enjoy the following civil rights: 1. They enjoy property rights based on production and other legitimate reasons. 2, based on commodity exchange or other reasons, the property circulation relationship occurs and enjoys the creditor's rights. 3. Enjoy intellectual property rights such as copyright, patent right and trademark right based on works, inventions and trademarks. 4. Natural persons have the right to life, health, personal freedom, name, portrait, reputation, honor, credit and privacy. 5. Legal persons and unincorporated organizations enjoy personality rights such as name right, reputation right, honor right and credit right. 6. Have the right of inheritance according to the will or the law. 7. Natural persons enjoy relevant personal rights and property rights due to marriage, family and kinship. 7. Other civil rights and interests enjoyed according to laws, civil juristic acts and other legal reasons. 8. Natural persons, legal persons and other organizations shall bear civil obligations in accordance with laws or contracts.
Section II: Exercise of Civil Rights, with the following contents: 1. The exercise of civil rights is protected by law. 2. Restrictions on civil rights. 3. Self-defense. 4. Emergency hedging. 5. Self-help behavior.
Section 3 Undertaking of Civil Liability. The content is as above.
The above provisions on civil rights, obligations and responsibilities are not only universal and open, but also help people to enhance their concepts of civil rights and responsibilities. Judging from the system of creditor's rights assembly, the liability for breach of contract should be stipulated in the General Principles of Creditor's Rights Assembly. Because a large number of liabilities for breach of contract are liabilities for breach of contract, it is necessary to stipulate the general problems of liabilities for breach of contract in the general contract and the special problems of liabilities for breach of contract in various contracts. With regard to the general liability for violating various debts such as negotiorum gestio, unjust enrichment, unilateral promise (prize-winning advertisement), the general provisions on civil liability in the General Provisions can be applied, and the special problems of violating these debts are stipulated in the relevant debt relations. Therefore, it is not necessary to stipulate the general problem of debt default in the general principles of creditor's rights.
In the new civil liability system, the liability for breach of contract is different from the traditional liability for breach of contract. One of the differences is that responsibility and debt are strictly separated. "Since the succession of Roman law (the two concepts of debt and liability in Roman law have long been combined into one), general property liability has conceptually become the effectiveness of creditor's rights or one of its functions, so the view that there is no difference between the two is universal." [14] Modern civil law theory recognizes the difference between debt and responsibility, but emphasizes that debt is responsibility, and in principle, debt is accompanied by responsibility. [15] In fact, the above analysis is inconsistent with reality. Under normal circumstances, debtors generally perform their obligations voluntarily, and once they perform their obligations, there will be no liability problem. The concept of "responsibility" should be clearly used to distinguish it from the concept of "debt". The consequence of violating the debt is responsibility, and there is no situation in which the responsibility is converted into debt.
The second difference is that the liability for default debt is limited to property liability. Traditional civil law regards eliminating influence, restoring reputation and apologizing as the form of damages, and excludes non-property liability from the new liability for breach of contract, thus making the internal unity of debt structure more rigorous. Whether the connotation and scope of debt is limited to the price of property has been controversial since ancient times, but modern scholars generally believe that debt law is property law. From the internal unity of the debt, its unity is unified in the payment with economic value. Professor Wang Zejian has an incisive exposition on the structure of debt. He said: "Contract, negotiorum gestio, unjust enrichment and tort have different guiding principles, social functions and constitutive requirements, which are not enough to become the same constitutive requirements. The internal unity of its constituent debts is the similarity of its legal effect. In other words, all the above legal facts have the same legal effect in form: one party can ask the other party for a specific act (payment). This kind of legal relationship between specific people requesting specific behavior is debt relationship (Schuldverh &; Aumltnis). "[16] Mr. Wang Zejian's summary of debt structure provides a good idea for us to study the connotation and extension of debt. The scope of "specific behavior" mentioned here needs to be limited, otherwise, the internal unity of debt structure will be destroyed. The proportion of non-property civil liability in civil liability tends to increase. If all non-property civil liabilities are classified as damages, the internal unity of debt structure will be destroyed.
The third difference is that the liability for breach of contract is a part of civil liability, not the whole. In addition to the liability for breach of contract for debts, civil liability also includes the liability for breach of contract for other civil obligations; In addition to liability for damages, there are many forms of civil liability.
The fourth difference is that tort no longer belongs to the category of debt. Tortious debt is separated from the series of debt, and its content has expanded into an independent series in the Civil Code. Liability for breach of contract is the consequence of breach of contract and the method to protect creditor's rights. Tort liability is the result of infringement and a method to protect personal rights, property rights and intellectual property rights. Most civil law scholars are in favor of the establishment of "Tort Law" in the Civil Code, and the eighth part of the draft civil law submitted by NPC Law Committee to the National People's Congress Standing Committee (NPCSC) is "Tort Liability Law". The author thinks it can be called tort liability in the civil code. Calling Tort Liability Law shows that Tort Liability Law of Civil Code is developed from the chapter of Civil Liability in General Principles of Civil Law (Chapter VI), and there are differences and connections between Tort Liability Law and traditional Tort Liability Law.
Tort liability refers to the responsibility of infringing personal rights, property rights, intellectual property rights and other rights and interests. The series of creditor's rights stipulates the liability for non-performance of debts, and the series of tort liability does not apply. If a third party intentionally infringes on the creditor's rights of others, it shall bear the tort liability according to law.
After the tort liability is established in the civil code, the forms of tort liability include stopping the infringement; Eliminate obstruction; Eliminate danger; Return property; Restore to the original state; Compensation for losses; Eliminate influence and restore reputation; Tort liability for apology is no longer an integral part of debt, because most of these forms of liability do not conform to the inherent unity of debt structure. The internal unity of debt composition is essentially unified in the payment of economic value. [17] Take the general rules of debt compilation of the Civil Code of the Republic of China as an example. The main content of this compilation is: 1. The main body of debt includes types of debt, monetary debt, interest debt and selective debt. 2. The effectiveness of debt, including payment, non-payment and delayed payment. 3. Debt preservation, including subrogation and cancellation. 4. Most creditors and debtors include separable debts, joint and several debts and inseparable debts. 5, the transfer of debt, including the transfer of creditor's rights, debt commitment. 6. The elimination of debts includes liquidation, escrow, offset, exemption and confusion. All the above provisions are applicable to payments with economic value, in other words, they are designed for payments with economic value. Traditional civil law regards tort as one of the foundations of debt, because the liability of tort is damage compensation and payment with economic value, so the general rules of debt can be applied. After the tort liability was established in the Civil Code, the tort liability was not only damages, but most forms of tort liability did not reflect economic value, so the provisions of the General Principles of Liability for Debts could not be applied. Tort liability series is an open system to protect personal rights, property rights and intellectual property rights. It is rich in content and huge in space, which obviously cannot be accommodated by creditor's rights series.
It should be pointed out that the property compensation liability in the form of tort liability is mainly "compensation for losses", and the provisions of the General Principles of Creditor's Rights can be applied mutatis mutandis, because compensation for losses is usually in the form of money. However, its application cannot conflict with the legal provisions. For example, if intentional infringement causes damage to others, the infringer may not claim compensation.
After the tort liability is established in the Civil Code, the right of claim for real right is no longer stipulated, and the right of claim for personality and intellectual property is not added. Taking stopping infringement, removing obstruction and removing danger as tort liability is a continuation of the general principles of civil law, which is very different from the traditional concept and content of tort. Tort stipulated by civil law countries refers to an act that infringes on the rights and interests of others and should bear the liability for damages. Although it infringes on the rights and interests of others, it is not an infringement if it does not take the form of damages. Typically, the German Civil Code stipulates the right of claim for real right. Tort in Anglo-American law has different meanings from tort liability stipulated in general principles of civil law. "The terms in Anglo-American law, the infringement we translated into infringement and the infringement we also translated into infringement, have completely different meanings. The former includes all civil torts. The corresponding civil liability should be all the articles 134 of the General Principles of Civil Law I have read plus' others'. The latter only or mainly includes the tort that needs to bear the responsibility for property damage. The corresponding civil liability is mainly item (7) of Article 134 of the General Principles of the Civil Law (that is,' compensation for losses'), and at most two items (4) and (6) are added, because these two items are sometimes just another form of compensation for losses. " [ 18]
From the victim's point of view, stopping infringement, removing obstruction and eliminating danger is the right of claim, and from the infringer's point of view, it is the responsibility. Tort liability stipulated in the General Principles of Civil Law includes the content of real right claim in traditional civil law, out of a unified understanding of civil liability (the consequences of violating civil obligations and infringing on the rights and interests of others).
Unifying the right of claim for real right in the part of tort liability is conducive to enriching and developing tort law, diversifying civil liability and fully protecting civil rights, especially the growing personality rights. German professor Christian von Baer pointed out at the beginning of paragraph 1 of European Comparative Tort Law (Volume I) that tort law is a part of private law. It determines whether someone gets compensation after being infringed (or whether he is entitled to legal relief in the case of such infringement). A simple explanation that includes preventive legal protection is that preventing damage is much better than compensation. Therefore, it is correct to think that preventive legal protection is an important part of tort law. [19] When he talked about "preventive legal protection measures" in the second volume of the book, he once again stressed: We have pointed out before (that is, the first volume of the book refers to paragraph 1 and footnote 3) that preventive legal protection measures are part of the private law damage compensation law, which is necessary and precedes the damage compensation system. [20] Professor von Baer also pointed out that the preventive legal protection measures established in principle to defend the rights and interests protected by all tort laws have been recognized by European countries. He also cited many examples, including: The Netherlands established the general clause of the right to stop infringement in Article 3: 296 of its Civil Code, and Articles 6: 168 and 169 (about misleading advertising) in the tort law supplemented the basis of this right of claim. There is also a general rule in Britain, that is, "without theoretical argument, why can't we stop the repetition and continuation of all infringements and issue a ban?" An adult son kept stealing and beating his mother, and the court issued an injunction to protect his mother's physical integrity. [2 1] This shows that the concept and legal practice of tort law are not limited to damages, but also pay attention to prevention, which breaks through the original boundaries of tort law in theory.
The preventive legal measures mentioned above are from the perspective of preventing damage. From another perspective, they are not prevention, but infringement, that is, infringement. The right of claim for real right includes the right to exclude obstruction and the right to prevent obstruction. The establishment of the right to exclude the nuisance of ownership "must objectively constitute an illegal violation of the perfect ownership state." [22] Article 1004 of the German Civil Code stipulates that "the right to claim for omission and exclusion of nuisance can only be aimed at illegal nuisance." [23] Since it is "infringement" and "illegal", it hinders the rights and interests of others. What's the difference between this and infringing on the rights and interests of others? Why can't it be called infringement?
There is no real right claim in the civil code, so it is not difficult to solve the legal problems that need to be changed in the civil code in legislative technology. Among them, it is mainly about stopping infringement, removing obstruction and removing danger as the constitutive elements of tort liability. These constitutive elements are regarded as the right of claim for real right, regardless of whether the actor is at fault. As the form of tort liability, fault is not regarded as an element, that is, as a part of no-fault liability, it is not difficult to write clearly in tort liability (it can be considered to stipulate no-fault liability in the special section of tort liability). In addition, it must be decided by the court whether to apply the form of responsibility to stop the infringement, remove the obstruction and eliminate the danger. There are three ways to bear civil liability: automatic liability, request liability and compulsory liability. [24] There are three ways to stop the infringement, remove the obstruction and remove the danger, and it is not necessary to pass the court judgment. If the parties ask the infringer to bear this responsibility, it will of course be realized through court judgment. The parties may also make a request before litigation, and the court may make a ruling or ruling to solve the problem according to the request of the parties.
Recently, Professor Zheng put forward a clear view on the legislative approach of China's tort law. He said: "As for the structure of tort law, it seems that it can continue a veritable tort law (or tort liability law) that stipulates (at least) nine kinds of tort liability in the past 20 years, without taking the existing narrow framework of tort liability in France, Germany, Italy, the Netherlands, Japan and even Taiwan Province Province as the blueprint. What is different from the existing laws (that is, what should be changed) is to clearly distinguish the parts of tort liability that do not need the' four elements' (such as the responsibility to stop the behavior) from the parts that must have the' four elements'. This amendment is not big, but it is substantial and extremely important. In drafting the Tort Liability Law under this framework, most of the clauses in the "property right" (or personality and intellectual property rights) except "confirmation" can be omitted. Because they all enter the tort liability part of the tort law without' fault'. The advantage of this legislative option is that the text is clear and duplication is avoided. "