If an actor infringes upon the property and other lawful rights and interests of others, he shall bear civil liability according to law.

"It is generally believed that tort is a civil fault first, that is to say, tort destroys a certain responsibility stipulated by law-this responsibility is strictly prohibited by law; Infringement is also an act that causes harm to others, and the perpetrator must compensate the injured person. "

Second, the concept definition

There are two legislative examples of the constitution of tort: one is the way that Roman law and Anglo-American law countries respectively stipulate the constitutive requirements and effects of each individual tort, and the other is the way that similar to Article 1382 of the French Civil Code sets the general provisions on the constitutive requirements and effects of tort (making the person who caused the damage due to fault bear the obligation of compensation). Judging from the works of China scholars, they are generally keen on the latter, namely. According to the former, it seems that it can be concluded that it is impossible to give a unified concept of infringement; According to the latter, it seems difficult to reach a unified understanding. Where is the way out? This paper holds that infringement, as a social phenomenon, must have its similarities. As long as we sum up the similarities between each specific tort, it is still possible to give a more scientific concept of tort.

The guiding ideology of defining the concept of infringement

1) The concept of tort should reflect the similarities and differences of all kinds of tort.

Scholars hope to make a unified definition of tort. "The focus of this definition is the operability of the specification. Because the definition gives the identification marks and constituent elements of the tort, the judge can make a judgment as long as he determines whether the facts of the case meet the legal conditions according to the syllogism reasoning method. This definition has become a prerequisite for the implementation of the law and a manifestation of the unity and stability of the law. " At present, civil law scholars have different understandings of the composition of tort, forming three elements, four elements or even five elements and six elements, precisely because they ignore the reasons or basis for finding its universality from various specific tort. Torts vary widely, but their common feature is that the legitimate rights and interests of others recognized and protected by law have been infringed by some kind of behavior. The infringer is the subject, and the infringed object is the legitimate rights and interests of others recognized and protected by law. The subject acts on the object through various torts and becomes the intermediary between the subject and the object. In the relationship between subject, behavior and object, the object is single, while the subject and behavior are multiple and complex. The oneness of the object provides the basis for defining the concept of tort.

2) The connotation of tort should be the essential attribute of various specific tort.

Historically, the expression of the concept of infringement is far less complicated than that of modern scholars. In Justinian's Common Law, a world-famous masterpiece of Roman law, the word "injurious act" refers to all acts that violate the law. "During Roman rule, illegal acts were divided into delicta publica and delica Privata( 1). It can be seen that the tort of Roman law is an act against private property or personal. Simple and clear. The deficiency of this concept is that not all acts that infringe on the rights and interests of others can be identified as tort, but must be recognized and protected by law. Tort, as the theoretical premise of various specific torts, should conform to the "simplest principle".

The so-called simplest principle is that, from an extension, it can include all infringements. From the connotation point of view, it can concentrate the most basic units and factors in all kinds of infringement, and exclude all special factors in different types of infringement. Using a mathematical term is to find the "greatest common divisor" between numbers. The less special factors such a concept reflects in various specific torts, the less likely people will make mistakes in recognizing and identifying torts. This is as Einstein said: "When the basic concepts and axioms are farther and farther away from the observable things, it becomes more and more difficult and time-consuming to verify the meaning of the theory with facts, and this demonstration method will certainly play a greater role in the choice of the theory."

3) The concept of tort should conform to the scientific logical structure.

Logic tells us that concepts should reflect the essential attributes of things. A concept, to reflect the essential attributes of things, should first start from the investigation of specific things or phenomena, combine all parts, factors and attributes of the studied objects or phenomena into a unified whole for investigation, comparison and analysis, then abstract the essential attributes of the objects or phenomena, put the other attributes aside for the time being, and make a transition from understanding the special essence of individual things to understanding the same essence of similar things. This method is analytical, comprehensive, abstract and generalized. The objective basis of generalization is that similar things have their universal attributes, not only one kind of things, but also this kind of things. Concepts that can reflect the essential attributes of similar things are generic concepts, and concepts that reflect individual things in similar things are concepts. The concept of tort and the concept of specific tort should conform to the relationship between the concept of category and the concept of category.

Briefly explain the object, subject and behavior of tort;

First, the object of tort is the rights and interests recognized and protected by law.

Whether it belongs to the rights recognized and protected by law can be divided into three situations: one is that the object of infringement belongs to the rights absolutely protected by law. This kind of rights and interests has the nature of the world, that is, everyone in the world has the obligation of non-infringement, and its obligor is not specific. Whoever infringes on such rights and interests is an infringement. For example, generally speaking, the personal rights and property rights of civil subjects are absolutely protected by law. On the other hand, the object of infringement belongs to the object of "relative protection" by law. In other words, the law allows the actor to do harm to the object within a certain range or under certain conditions, and the law does not prohibit, condemn or even encourage such harm. Only when the actor violates these conditions will the law protect him. For example, doctors should not only remove patients from patients, but also remove some good organs or bodies of patients for the benefit of patients. This is necessary to save the patient's life. Of course, this kind of behavior is not infringement. If this situation is exceeded or these conditions are not met, other organs or organisms that should not be removed from the patient's body will be removed, which is an infringement of the legitimate rights and interests protected by law and should be recognized as infringement. For example, in order to treat appendicitis, a hospital was heated by the media, and the patient's uterus was actually removed. For another example, in competitive sports, under the premise of observing the rules of competitive sports, it is allowed by law for athletes to hurt each other's bodies because of reasonable collision, which is not a right recognized and protected by law and cannot be regarded as infringement. If an athlete violates the rules of the game and intentionally hurts the other side, it should be regarded as infringement. Because the injured athletes in this case belong to the rights recognized and protected by law. Third, the object of infringement belongs to "the object that the law does not recognize and protect". If it is "self-defense" to prevent the criminal suspect from killing or injuring him, it naturally does not belong to infringement.

Second, the identification of the subject of infringement.

The determination of tort should distinguish tort from the specific commitment of tort liability. According to the traditional theory of civil law, because a person without capacity has no capacity, there is no infringement problem in his behavior. This view is debatable. Tort and tort liability are two different issues. Article 133 of China's General Principles of Civil Law stipulates: "If a person without or with limited capacity for civil conduct causes damage to others, the guardian shall bear civil liability." If the general principles of civil law are not clear enough about the nature of "causing harm to others" here, then the Opinions on Implementing the General Principles of Civil Law of People's Republic of China (PRC) (Trial) issued by China and the Supreme People's Court is even more clear. Article 22 stipulates that "a guardian may entrust part or all of his guardianship duties to others, and if he needs to bear civil liability for the infringement of the ward, he shall bear it." Here, the Supreme People's Court clearly defines the ward's "behavior that causes damage to others" as tort. Among them, the ward naturally includes people with no capacity for conduct. Accordingly, it is completely reasonable to think that a person without capacity for civil conduct can become the subject of infringement, and his behavior can constitute infringement, which is not necessarily related to whether he bears civil liability specifically.

Third, the identification of infringement "behavior"

The traditional theory of civil law links the tort with the actor's ability to recognize and judge the consequences of his behavior. A person without capacity is considered to have no capacity for tort because he can't identify and judge the consequences of his actions. This paper holds that there is no need to impose too many subjective factors on the determination of infringement. Life practice has proved that there are two kinds of infringement: one is subjective no-fault infringement, including the infringement of incompetent people and the infringement of "doing bad things with good intentions"; The other is fault infringement, that is, intentional or negligent infringement. There is no difference in nature between the consequences of these two kinds of infringement on the victims. Infringement is a factual act. For real estate, based on the state or process of fact, it is obvious that the law pays legally effective behavior because of its result, and factual behavior does not emphasize the subjective factors of the actor. Fleming, a British jurist, believes that "no matter whether the infringer is subjectively imputable or not, innocent victims should be compensated."

It can be seen that it is the basis of law and social practice to define the nature of tort by whether it infringes on the rights and interests recognized and protected by law.

Special tort

First, the civil liability of public officials in state organs for causing damage.

The damage caused to others by public officials of state organs in the performance of their duties shall be borne by state organs only if the law stipulates and they perform their duties improperly. State functionaries who intentionally cause damage to others by taking advantage of their functions and powers shall bear civil liability on their own. If a public official of a state organ does not cause damage to others in performing his duties, he shall also bear civil liability.

Two, the civil liability of tort in employment activities or employment relations.

Engaging in employment activities refers to engaging in production and business activities or other labor activities within the scope authorized or instructed by the employer. If an employee's behavior is beyond the scope of authorization, but it is manifested in the performance of his duties or is intrinsically related to the performance of his duties, it shall be recognized as engaging in employment activities. According to Article 9 of the Interpretation of Personal Injury Compensation, if a laborer causes damage to others in the process of employment, the employer shall be liable for compensation; Laborers who cause damage intentionally or through gross negligence shall be jointly and severally liable with the employing unit. If the employer is jointly and severally liable for compensation, it may claim compensation from the laborer.

Third, the civil tort liability in helping others

If a helper who provides services for others free of charge causes damage to others in his helper activities, he shall bear civil liability for compensation. If the helped laborer explicitly refuses to help, he will not bear compensation.

Fourth, the civil liability for damage caused by product defects.

If the unqualified products cause property or personal injury to others, the producers and sellers of the products shall bear civil liability according to law. If the carrier or warehouse is responsible for this, the product manufacturer or seller has the right to claim compensation for the loss.

There are three exemptions for product producers: (1) failure to put products into circulation; (2) When the product is put into circulation, the defect causing damage does not exist; (3) When the product is put into circulation, the level of science and technology cannot find defects. At the same time, the law stipulates that producers and sellers shall not be liable for compensation if the victim intentionally causes damage. If damage is caused by the fault of the victim, the liability of the producer or seller for compensation may be reduced.

Verb (abbreviation of verb) civil liability for damage caused by highly dangerous operation

Engaged in high altitude, high pressure, flammable, explosive, toxic, radioactive, high-speed means of transport and other operations that are highly dangerous to the surrounding environment and cause damage to others, shall bear civil liability; If it can be proved that the damage was intentionally caused by the victim, it will not bear civil liability.

Civil liability of road traffic accident damage with intransitive verb

If a traffic accident of a motor vehicle causes personal injury or property loss, the insurance company shall make compensation within the liability limit of compulsory insurance for the third party of the motor vehicle.

If the liability limit is exceeded, it shall be liable for compensation in the following ways: (1) If there is a traffic accident between motor vehicles, the party at fault shall be liable; If both parties are at fault, they shall share the responsibility according to their respective fault proportions. (2) In case of a traffic accident between a motor vehicle and a non-motor vehicle driver or pedestrian, the motor vehicle party shall bear the responsibility. However, if there is evidence that non-motor vehicle drivers and pedestrians violate road traffic safety laws and regulations, and the motor vehicle drivers have taken necessary measures, the responsibility of the motor vehicle side will be reduced.

The loss of traffic accidents is intentionally caused by non-motor vehicle drivers and pedestrians, and the motor vehicle side is not responsible.

Seven. Civil liability for environmental pollution damage

Those who violate the state regulations on environmental protection and pollution prevention and control, pollute the environment and cause damage to others shall bear civil liability according to law.

There are three exemptions for environmental pollution damage: (1) If environmental pollution damage cannot be avoided due to irresistible natural disasters and reasonable measures are taken in time; (2) Pollution damage is caused by the victim's own fault; (3) Pollution damage is caused by the fault of a third party.

Eight. Civil liability for damage caused by ground construction

If anyone digs, repairs or installs underground facilities in public places, roadsides or passages, and fails to set obvious signs and take safety measures to cause damage to others, the constructor shall bear civil liability. The constitutive requirements of this tort are: (1) Construction work should be carried out in public places, roadsides, passages and other places that may endanger pedestrians. (2) The builder has not set up obvious signs or taken safety measures. (3) the existence of damage facts. (4) The contractor is at fault. (5) Causality.

Civil liability for damage caused by buildings etc.

If a building or other facilities, as well as the shelving and hanging objects on the building collapse or fall off or cause damage to others, its owner or manager shall bear civil liability, unless he can prove that he is not at fault.

In the following cases, the owner or manager shall be liable for compensation unless he can prove that he is not at fault: (1) artificially built structures such as roads, bridges and tunnels are damaged due to maintenance and management defects. If damage is caused by design and construction defects, the owner, manager, designer and constructor shall bear joint and several liabilities. (2) The stacked items tumble, slide or collapse, causing personal injury. (three) trees fall, break or fruit falls, causing personal injury.

10. Civil liability for damage caused by raising animals.

If the animals raised cause damage to others, the animal breeder or manager shall bear civil liability; If damage is caused by the fault of the victim, the animal keeper or manager shall not bear civil liability; If damage is caused by the fault of a third party, the third party shall bear civil liability.

Animal breeders and managers have two exemptions: (1) damage caused by the victim's fault. (2) Damage caused by the fault of a third party.

Xi。 Civil liability for damage caused by a person without or with limited capacity for civil conduct.

If a person without or with limited capacity for civil conduct causes damage to others, the guardian shall bear civil liability. If a guardian fulfills his guardianship responsibility, his civil liability may be appropriately reduced.

12. Civil tort liability in commercial activities or other social activities.

Natural persons, legal persons and other organizations engaged in accommodation, catering, entertainment and other business activities or other social activities, which fail to fulfill their reasonable security obligations and cause personal injury to others, shall bear civil liability for compensation according to law. If damage is caused by infringement by a third party, the infringing third party shall be liable for compensation. If the security obligor is at fault, he shall bear the corresponding supplementary liability for compensation within the scope that he can prevent or stop the damage. After assuming the responsibility, the security obligor may claim compensation from a third party. Where the obligee for compensation brings a lawsuit against the security obligor, the third party shall be listed as a * * * co-defendant, unless the third party is uncertain.

Intrinsic characteristics

The dispute over the above elements. Mainly concentrated in the following aspects, namely: fault, illegal behavior, damage facts are the necessary elements of tort. The "elements" of tort should be an indispensable condition for all tort. Only when the lack of this condition can't constitute infringement can it be called "elements", otherwise it can't be called "elements". When a certain condition is only a necessary condition for a certain type of infringement, but not a necessary condition for all infringements, such a condition should not be regarded as a "necessary condition" for the concept of infringement. In line with this guiding ideology, let's discuss several elements in the dispute:

I. Fault

According to the general theory of Chinese academic circles, it refers to "the psychological state of the actor when he commits an illegal act, which can be divided into intention and negligence." The so-called intentional means that the actor knows that his behavior may have some legal consequences, but he still carries out this behavior and deliberately promotes the occurrence of illegal consequences. The so-called negligence means that the actor should have foreseen the possible illegal consequences of his actions, but he could have foreseen it, or even if he had foreseen it, he thought it would not happen, resulting in illegal consequences. " It can be seen that fault mainly refers to the subjective consciousness of the actor. This paper holds that fault should not be a constitutive element of tort:

(1) From the perspective of our legislation, Article 106 of the General Principles of the Civil Law stipulates: "If there is no fault, but the law stipulates that civil liability shall be borne." Accordingly, China's General Principles of Civil Law adopts a broad concept of tort, including both fault infringement and acts that are not at fault but should bear civil liability according to the law. Fault tort is a subordinate concept of tort; As a general concept, "tort" should not have its place.

(2) From the perspective of judicial practice, when the court determines a certain tort, it can sometimes be determined as a tort only on the basis of the behavior carried out by the actor himself, and there is no need to investigate the subjective fault of the actor. For example, the act of counterfeiting another person's registered trademark is enough to constitute infringement in itself, and there is no need to discuss the inner psychological state of the actor. Third, in many cases, as long as the behavior of the actor infringes on the legitimate rights and interests recognized and protected by law, even if the actor is not at fault, it should be considered as infringement. "People who do bad things with good intentions" is one of them. Although it is "goodwill", it infringes on others and cannot but be regarded as "infringement". There are also such examples abroad. There is an "eggshell Shure" in American tort law, that is, the plaintiff has a skull as thin as an eggshell, and the defendant slapped his skull like a normal person because of "joking", which led to the plaintiff's death. In this case, the defendant's intention to hurt the plaintiff "does not exist at all", and the defendant did not foresee and should not foresee that his behavior would lead to the plaintiff's death. But the defendant is still responsible for his actions. What constitutes infringement here is his "behavior and its consequences", not his "inner fault".

(3) The focus of tort law protection should be innocent victims. Even if there is no intention or negligence in the victim's mind, but it has caused damage to others, the victim should be given relief. In this regard, the famous American judge O 1W 1 Holmes had a wonderful exposition: "If a person who is born reckless and stupid always makes trouble, either hurts others or hurts himself, then there is no doubt that his birth defects will be forgiven in the court of heaven. But he inadvertently caused trouble to his neighbors, no less than the trouble caused by negligent crime. So his neighbors asked him to meet their standards, otherwise he would bear the consequences. The courts established by these neighbors will not consider his personal defects. "

Second, "illegal"

"Illegality" refers to the negative evaluation of the act by law. Whether "illegality" can be regarded as a constitutive element of tort has a standard problem of how to measure "illegality". There are two standards to measure the "illegality" of an act: one is to regard the infringed object as the standard, and think that any act that infringes on the legitimate rights and interests protected by law is illegal. This standard is reflected in the opinion that the Second Drafting Committee opposed the First Drafting Committee when drafting the German Civil Code at the end of 19. The Second Drafting Committee objected to the second paragraph of Article 704 of the draft Civil Code drafted by the First Drafting Committee, arguing that this paragraph allows any victim to enjoy the right to compensation for damages, regardless of whether the violated law is to protect his affected interests or not, and this law has gone too far. It is argued that only when the legitimate interests of the victim are infringed, the infringer will be liable for compensation. The German Civil Code finally adopted the opinions of the Second Drafting Committee and formed Article 823 of the German Civil Code promulgated and implemented in 1990. Another criterion is to define whether the tort is "illegal" according to the nature of the act itself. If the actor's behavior itself is legal, even if it infringes on the legitimate rights and interests of citizens and legal persons, it can't be defined as infringement, and it can even be a reason to stop violating the law. Emergency avoidance is a legal act recognized by traditional civil law theory. Some civil law textbooks not only don't talk about emergency avoidance, but also may cause "infringement". They also think that emergency avoidance can be a reason to stop illegal activities. This paper holds that everything has duality. Whether emergency hedging can constitute infringement should be analyzed according to the specific situation. For example, "there is a fire at the city gate, which affects the fish in the pool", and extinguishing the fire is undoubtedly a legal act. But from the point of view of the owner of pond fish, isn't his property damaged for no reason? Judging from the actual social life in our country, many legal acts also cause infringement damage. If the factory discharges pollutants according to the national standards, it is legal, but even if it discharges pollutants legally, it is still necessary to compensate the residents in the surrounding communities. 2001165438+1October 28th, CCTV Oriental Time and Space program was broadcast, and the setting of a high-voltage power station met the national requirements, but three daughters of a nearby family suffered from a strange disease because of the setting of the high-voltage power station, and sued the power station. Can it not be regarded as infringement because it is in full compliance with state regulations? The reality of social life challenges the traditional tort theory. Some scholars correctly pointed out: "Tort is a civil legal fact, but it is difficult to completely classify it as illegal or legal. It should be considered that most infringements are legal facts of illegal acts, and there are also legal acts that infringe on the rights of others. " Therefore, judging from the nature of the act itself, it is difficult to regard "illegality" as a constituent element of the tort.

Third, damage the facts.

Damage includes not only material or monetary damage, but also personal injury, death and mental damage. Many academic works regard the fact of damage as an indispensable element of tort. It is believed that "only the behavior without damage does not constitute infringement." "All kinds of infringements have different degrees and the consequences are not exactly the same. Minor infringement may cause minor damage consequences, but in any case, there is no damage consequence and it does not constitute infringement. " In general, infringement will cause damage, which is normal. But is it absolutely correct that any infringement will cause damage? It is debatable. From the perspective of causality, tort is the cause and damage fact is the result. From the criminological point of view, there are "criminal preparation" and "attempted crime". Even if these acts have no harmful consequences, it will not affect the condemnation of their actions. Tort and damage fact are two different concepts. Tort is a generalization of the nature of tort, and the damage fact is the result of tort. In most cases, tort will cause some damage, but there are exceptions. Examples in real social life can prove that a factory prints registered trademarks of others without authorization and sells them on its own products. After being reported, the forged trademark logo was seized and destroyed by the industrial and commercial bureau. In this case, the behavior of the factory did not cause any economic loss or mental loss to the trademark owner, but can it be regarded as infringement on this basis? Can the registered trademark holder ask him to bear the civil liability of apologizing? In Anglo-American tort law, there are nominal damages and substantial damages. Nominal damage compensation refers to the damage compensation that the victim has the right to claim compensation in order to confirm the infringed right, but it has not caused actual damage consequences. [In some civil law countries, such as Japan, the University Bathroom incident decided by the Grand Court on June 28th 1925 and 165438 has also ruled that the infringement does not necessarily constitute an infringement of certain rights. It is not difficult to see that there is infringement without damaging the results, and it is not impossible to constitute infringement without damaging the facts.

From the above analysis, it can be seen that fault, illegality and damage facts are not necessarily the constituent elements of tort under certain circumstances. "Any form of movement contains its own special contradictions. This special contradiction constitutes the special essence that distinguishes one thing from other things. " Torts are varied because each kind of infringement has its own particularity. The formation of this particularity lies in the difference of weather, geography and human harmony, and everything is transferred by certain weather and geographical conditions. Sometimes, an act itself can constitute infringement without other conditions, such as counterfeiting other people's well-known trademarks. Sometimes it is uncertain whether an act constitutes infringement, and other conditions are needed. If A quarrels with B, A gets angry and chases B with a stick. Because B runs fast, A can't fight. Although Party A has obviously caused intentional injury to Party B, it does not constitute infringement because it has not caused damage to Party B's person or property. In this case, the constitution of A's tort requires two conditions: intentional behavior and the fact that the behavior has caused damage to B. It is obviously unrealistic to put these two different types of tort into the framework of three elements and four elements.

behavior characteristics

1. Tort is a unilateral factual act.

Infringement is based on the will of the parties, and the civil legal consequences caused by infringement are unexpected by the parties. So infringement is a factual act.

Second, tort is a kind of civil violation.

The illegality of tort violates the provisions of law in time, which is not allowed by law, and its essence is a violation of the obligations stipulated by law. The so-called legal obligation here. Article 5 of the General Principles of the Civil Law stipulates that the legitimate civil rights and interests of citizens and legal persons are protected by law, and no organization or individual may infringe upon them. For absolute rights such as property rights and personality rights, any organization or individual has an inviolable general obligation. This general obligation is the main source of the legal obligation on which the infringement is based. In addition, creditor's rights can also be the object of infringement, but it needs a higher threshold in composition.

Secondly, the legal obligations here also include the special obligations given to certain specific subjects by law. For example, Article 37 1 of the Tort Liability Law stipulates that managers of hotels, shopping malls, banks, stations, entertainment places and other public places or organizers of mass activities shall bear tort liability if they fail to fulfill their security obligations and cause damage to others. Article 38 of the Tort Liability Law stipulates that kindergartens, schools or other schools or other educational institutions shall bear the responsibility if a person without civil capacity suffers personal injury during his study and life, but those who can prove that they have fulfilled their educational management responsibilities shall not bear the responsibility. Article 39 of the Tort Liability Law stipulates that if a school or other educational institution fails to fulfill its educational management duties and suffers personal injury during its study and life, it shall bear the responsibility. Accordingly, managers of public places or organizers of mass activities have the obligation to ensure safety. Educational institutions have the obligation to educate and manage persons without or with limited capacity for civil conduct who study and live in the institutions. Another example is the labor safety protection obligation stipulated in the labor law. If these legal obligations are violated, the obligor may constitute infringement.

Thirdly, the legal obligations here also include some specific actions or omissions set by the Tort Liability Law. For example, Article 125 of the General Principles of Civil Law stipulates that obvious signs should be set up when digging and repairing highways. Article 965438 1 of Tort Liability Law stipulates that a builder who digs a pit or sets underground facilities in a public place or road, fails to set obvious signs and takes safety measures to cause damage to others, shall bear civil liability. This behavior of setting clear signs is a compulsory obligation. If the actor violates his behavioral obligations and does not set up obvious signs, the damage caused to others shall be tort liability.

Third, tort is an act of hurting others.

The object of tort includes civil rights and civil interests. The civil rights infringed by tort include personal rights, property rights, inheritance rights, intellectual property rights and other absolute rights, generally excluding creditor's rights. Other legitimate interests besides civil rights also belong to the scope of tort law protection.

4. Tort is the basis of tort liability.

Tort is an act that can cause civil legal consequences. This legal consequence is that the infringer should bear the tort liability.