First, the judgment object of illegality

There are two criteria to judge substantive illegality: result illegality and behavior illegality. In the process of seeking relief, they focus on different objects, which leads to different normative effects.

Results The theory of illegality holds that the infringement that leads to the infringement of rights naturally constitutes illegality, and the infringement of rights is regarded as the criterion of illegality, which is not applicable only if there are obstacles to the infringement. This theory adopts the theory of causal behavior, and holds that there is an inseparable relationship between the damage result and the illegal act, and the result can be regarded as a part of the act.

There are two theories: one is illegal and the other is illegal. Because unitary illegality only defines illegality as a formal violation of norms, it has been widely criticized, and the mainstream view is dual illegality. The dual illegality theory holds that an act cannot be presumed to be "illegal" just because it has the negative result of infringing on the absolute legal interests of others. In addition to the negative result of infringing on the absolute legal interests, the act itself that caused the damage should also be considered. In other words, to judge whether there is illegality, in addition to measuring the results, we need to explore more deeply and actively whether the behavior violates the general duty of care in social life. According to the theory of illegal behavior, intentional infringement can be directly identified as illegal, while negligent infringement should also be judged by violating the obligation of behavior. That is, if the behavior does not violate the general duty of care, although there is a causal relationship between the behavior and the negative result of infringing on absolute legal interests, the legitimacy of the behavior should be affirmed because of its "social legitimacy". In other words, an illegal act with a purely possible result does not need to be treated as an illegal act if it is necessary to promote social development and social life, has limited damage to social order, or does not violate the norms as the behavioral benchmark. It can be seen that the theory of illegal behavior has the function of limiting the illegal results and avoiding the excessive obstacle to the freedom of social activities caused by the proliferation of illegal identification.

The theory of illegal results defines the benchmark of evaluation as a result unrelated to human behavior, which has two main considerations: First, it insists on the structural distinction between illegality and responsibility. In a sense, the norms of tort law are the norms of prohibition, command and other responsibilities, but at the same time, these norms must imply the value orientation of legislators and the interests to be protected by law, so they will also play the role of evaluating norms and decide what kind of life interests need legal protection. According to the three-level constitutive requirements of tort law in traditional continental law system, evaluation norms should precede liability norms, and violation of evaluation norms is illegal; Violation of the norms of responsibility constitutes responsibility. This practice maintains the distinction between illegality and liability, thus affirming illegality unrelated to liability. The second is to adhere to the objectivity and unity of illegality. In the view of illegal consequence theory, even personal behaviors without fault, as well as body movements, natural phenomena and animal activities that can't be called behaviors at all, may infringe on the protection interests of tort law, or may be infringed. As long as the behavior or way infringes on certain legal interests, it may constitute infringement. Taking the objective, concrete and clear results as the center of illegality judgment and judging the substantive elements can maintain the objectivity and impartiality of the object of illegality judgment and ensure the accurate unity of liability composition and liability for damages.

According to the theory of illegal behavior, the theory of illegal result cannot be established. First, in the face of a rapidly changing society, there has been a "result-oriented" illegal standard. The theory of illegal consequence holds that there is an inseparable relationship between the damage result and illegality, and the result can be regarded as a part of the behavior. However, in the face of increasing pure indirect infringement, unless the law expressly stipulates that the actor should bear the responsibility for indirect infringement, it is difficult to reasonably explain that the actor of indirect infringement violates the law, because the result is no longer within the direct scope of the behavior process; Moreover, even if the focus of judging illegality falls on the negative result of absolute legal interest damage (the first real damage result), it finally comes down to the behavior that leads to the result. If it is determined to be illegal, it will lead to excessive judgment of illegality. For example, in a traffic accident, even if the driver (car buyer) obeys all the traffic rules, he will still hit a child because he can't foresee it. Are automobile manufacturers, sellers and cautious drivers "illegal" because of "behavior" and "tort consequences"? The answer is obviouslyno. If the production and circulation of a specific commodity can be calculated by statistical methods, it will definitely cause casualties and property losses to others, then can such behavior be regarded as illegal? For example, in Germany, about 15000 people die in traffic accidents every year. By investigating the market share of automobiles, we can theoretically calculate the automobile-related casualties produced by various automobile manufacturers. Because we are talking about the positive behavior that infringes on the protected rights and interests (producing cars), the illegal factors are satisfied, and the answer to our question is yes: this behavior is illegal. Obviously, this conclusion is absurd. In order to avoid further imposing responsibility on producers, people are forced to deny the fault, even a rather causal relationship. It is obviously wrong to deny causality to exempt responsibility, because the result (death or injury) is neither atypical nor impossible, so there must be considerable causality here. It can be seen that according to the theory of illegal results, the control function of illegality has not been fully exerted and people's functional expectations have not been achieved. The so-called objectivity, concreteness, clarity and unity are only based on the excessive proliferation of judgment standards, and there is no accuracy at all.

Secondly, it is not enough to confuse the boundary between illegality and responsibility to investigate other behavioral elements besides infringement of division interests in the illegal stage. Under the theory of illegal consequences, the damage or danger that may be caused by the meaningless behavior of animals, nature or people is illegal, and it can be established as a legitimate defense of things in theory. If the tiger bites, it is definitely illegal, but it can be exempted because it cannot be attributed to it. However, according to the theory of illegal behavior, the theory of causal behavior cannot be established. Behavior is the realization of purpose, and people's subjective purpose is dominant. Orders and prohibitions can only be transformed into human behavior through human will. Based on the understanding of human behavior, what is illegal cannot be the neutral result of legal interest damage, but only human behavior. Behavioral obligations in legal norms are laws based on people's subjective will, and causality beyond people's subjective will is a category that behavioral obligations in illegal norms can control. If A is attacking B and C is looking for revenge from A, then he is attacking A to avoid injury. When it comes to whether C's behavior constitutes self-defense, it turns out that there is illegal resistance, but illegal behavior is considered illegal. Obviously, the latter is more in line with the public's legal feelings.

The debate between the theory of consequential illegality and the theory of behavioral illegality is related to the system and thinking method of tort law. Traditional illegality focuses on the protection of absolute legal interests, but it can neither control nor shield legal interests, nor cope with the rapid development of society, making emerging rights and interests unable to get reasonable relief because there is no legal basis. Comparatively speaking, the dualism of illegal behavior is preferable. First of all, the theory of illegality should meet the needs of social development. With the development of society, social relations become increasingly complex, and the breadth and depth of behavior are also expanding. When people enjoy more freedom of action than before, dangers will follow. An actor's carelessness may cause great harm to others and society. As for how to regulate socially equivalent behaviors, the result-oriented illegality theory is obviously insufficient, which needs to be supplemented by illegal behaviors on the premise of illegal results. When the result does not belong to the category of behavior, such as indirect infringement, omission and other factors, the illegality of behavior can be caused by violation of norms.

Abandoning the absolute theory of illegal results is no longer a theoretical level in the field of civil law, but has been applied to judicial practice. For example, in a recent judgment, the Austrian Supreme Court made the following statement: "... although not hurting the body is the content of the contract, physical injury itself does not mean that the defendant should be condemned for breaking the law; According to the general view, illegality refers to human behavior (that is, illegal behavior) rather than adverse results. Illegality arises from the act of violating the requirements of "due diligence" under certain circumstances. At the same time, it must be pointed out that the duty of care that cannot be realized at all cannot be imposed on the offender. In addition, in Spain and other countries, the illegality with illegal acts is considered as "absolutely necessary" and "inevitable" in the civil code. This concept is also reflected in Italian civil law and Dutch civil law to varying degrees.

Second, the elements of judging illegality

Results The illegality of the theory of illegality is usually considered as objective, which refers to whether the external behavior conflicts with the legal provisions (objective elements) and is an objective legal judgment. As for the inner state of dominant behavior, it doesn't matter. The theory of illegal behavior adopts the theory of purpose behavior, while the purpose behavior itself emphasizes the dominant position of purpose on behavior. Only through subjective investigation can we have an accurate understanding of illegality. Because according to the objective illegality theory, the damage caused by natural phenomena and animals is also illegal, but this is obviously wrong. In the final analysis, breaking the law is only a matter of human behavior. In other words, only those who know the norms and can make decisions according to the norms can be considered illegal. The objective facts themselves can't explain whether there is illegality, so we should further investigate the ability and subjective content of the actor, that is, the purpose, motivation and inner state of the behavior.

The indispensability of the subjective elements of illegality is mainly based on the following reasons. First of all, the subjective aspect of illegal behavior is conducive to a comprehensive understanding of the behavior and the damage itself, and is conducive to judging the existence and severity of illegality. In fact, the traditional civil law does not ignore the subjective elements of illegality. Most of the reasons for the obstruction of illegality can be obtained through subjective investigation: the victim's commitment can prevent the illegality of the injury to a certain extent; Although the legal nature of promise is generally considered as a quasi-legal act, some people think that it is not, because there is no room for the provisions on capacity, lack of will and invalidity of legal acts. Undoubtedly, promise must be judged by the subjective free will of the victim. For another example, negotiorum gestio is also an illegal reason, that is, although negotiorum gestio intrudes into my life because it undertakes management affairs, it is not illegal, because negotiorum gestio is enough to rule out illegality. However, managers need to manage affairs for others subjectively in order to manage affairs for no reason. If the manager is subjectively for his own affairs in interest management, he may set up false trust management or illegal management, which will invade my life and there is no reason for proper management to be illegal. In addition, there is the establishment of justifiable defense, which is necessary because the defender has the subjective meaning of defense. The meaning of defense mentioned here refers to the defensive behavior that the defender subjectively knows that his or a third person's legitimate interests have been violated, with the purpose of defense. If the perpetrator does not have any defensive intention out of revenge, then justifiable defense cannot be established. At the same time, the establishment of emergency hedging, scholars also advocate that the actor should subjectively express the meaning of hedging. The premise of self-help behavior is that the actor subjectively aims at self-help.

Secondly, highlighting the subjective elements of illegality is conducive to correcting the proliferation of illegality identification under the theory of illegal results. Results According to the theory of illegality, the criterion of judging illegality should abandon subjective elements in order to keep the illegality intuitive and clear. However, the result of this is that the extension of illegality is too large and it has to be limited by responsibility. For example, when A was driving normally, pedestrian B suddenly broke in, and A didn't have time to avoid it and ran into B. According to the theory of illegal results, it is illegal for A to infringe on B's person, and only when A is not imputable can it be exempted from its responsibility. However, if Party A has the ability to take responsibility, it can take responsibility for the damage of Party B. On the other hand, the theory of illegal behavior holds that A has neither foreseeable possibility nor inevitable possibility at this time, so it is unreasonable to criticize him for breaking the law. In view of the fact that his behavior is not illegal, he can be exempted from responsibility regardless of whether he is responsible or not. From this point of view, it is quite difficult to limit the violation of the law without starting from the possibility that ordinary people subjectively avoid the result; The subjective elements of the actor can reasonably limit the scope of illegality and accurately define the scope of tort liability.

Third, the study of subjectivity in illegality is conducive to the play of illegal functions. Illegality has educational function and preventive function, which are realized through the general duty of care under the dualism of illegal behavior. Duty of care refers to the code of conduct that the actor must follow in a specific situation and the reasonable preventive measures that should be taken according to this code. Including the establishment of duty of care and the violation of duty of care. The former discusses how to establish the duty of care according to the needs of the necessary transaction security order in society; The latter studies the possibility of avoiding danger at the factual level and whether it is obliged to take reasonable preventive measures against foreseeable dangers. If illegality does not need to discuss the existence of duty of care and the possibility of prevention and exemption under certain circumstances, it will be difficult for the public to play its guiding role, let alone education and prevention. For the referee, such illegality has no guiding effect on the composition of his referee responsibility.

Illegality cannot lack subjective elements, but this does not change the basic position that illegality is an objective existence. On the basis of adhering to the theory of infringement of legal interests, the theory of illegal behavior considers subjective illegal elements to further limit the scope of liability. Among them, the intention, motivation and purpose of the actor, as well as the behavior pattern determined by these subjective factors, have great influence on the establishment and size of illegality. Although in judicial practice, the subjective elements can be inferred from the behavior itself, in the entity, the subjective elements exist independently, not attached to the facts of the behavior.

One of the most prominent problems in introducing illegal acts into tort law is that this theory of illegal acts is logically flawed: when discussing whether an act is illegal, we distinguish between intentional and negligent tort types, think that an act that intentionally infringes on the absolute legal interests of others is illegal, and judge the intentional elements before the illegal elements, which obviously shakes the three-tier logical structure of establishing the liability for damages. Moreover, the introduction of "negligence" in the responsibility stage is tantamount to confusing the two, which violates the pure and objective spirit of "illegality" followed by the Civil Liability Law. In my opinion, intentional means knowing and longing for the result of infringement, which runs counter to the requirements of legal order and should be evaluated as illegal. However, intention is the subjective psychology of the actor and can be attributed, so there are indeed problems of double judgment and intentional judgment in advance. Scholars put forward that illegal acts solve the problem of intentional preposition relatively, that is, when determining whether an act is illegal, it is not to detect intention and negligence first, but to identify the obligation of violating acts that only belong to the expected normative purpose of the law as illegal on the basis of exploring the legal purpose, thus overcoming the disadvantage of putting responsibility judgment in the first place. With the help of the theory of legal purpose, illegality becomes "relative", that is, only within the scope of the protection purpose of a certain legal rule can the rule become the basis of behavioral obligations, and violation of behavioral obligations is illegal. The basis of behavior obligation is the stipulation that people must act or not act in some specific circumstances in order to realize an ideal legal order. The starting point of judging the illegality of legal norms based on "behavior obligation" is not only the actor, but also the legal order. The "relativity" of illegality reveals that illegality is essentially a response to the behavioral obligations stipulated by legal norms and a negative evaluation of behavior by legal norms. In short, the relative person's behavior is illegal, that is, in the illegal stage, we should examine the motivation, purpose and intention of the actor, rather than deliberately judge his desire to know, so as to solve the problem of intentional preposition.

At the same time, introducing subjectivity into the illegality theory will not lead to confusion between illegality and liability. The difference between illegality and liability can be considered as the difference between "when" (Soren) and "possible" (Conan). Because from the point of view of illegal behavior, the norm refers to all people, and the predetermined person is an ordinary person, which is "an objective size" and has the same requirements for all people; Responsibility should consider the way and method of the actor's will formation and the individual's ability to understand normative orders. In other words, illegality and liability are exactly the same from the content of their duty of care. The difference between illegality and negligence is that negligence must be accompanied by another condition, that is, a kind manager in the same specific situation as the actor, or whether the obligation to these contents can be objectively (or subjectively) recognized according to the actor's usual degree of attention. Ethel also believes that in dualism, the judgments of illegality and liability are very similar, but they should be different. The focus of illegality lies in the violation of "behavioral obligation", while the judgment of responsibility is "the actor lacks will" The measure of violating obligations in illegality is objective, while the measure of responsibility without necessary meaning can only be judged before engaging in it, that is, under certain circumstances, if people of the same age, the same professional group or the same experience can expect to what extent, compared with the actor, this is a type of judgment. Thus, although the distinction between "when" and "possible" breaks the traditional structure of "illegality is objective and responsibility is subjective", it insists that illegality is a general evaluation and responsibility is a paradigm of individual evaluation.

Third, the judgment point of illegality.

Results The theory of illegality is confirmed after an objective event, that is, according to the idea of legal interest investigation, it has caused concrete damage to life interests, and has the characteristics of objectivity and clarity. According to this idea, the time standard of illegality judgment is the result time, not the behavior time, and the illegality evaluation is always afterwards, which belongs to the response measures taken against the illegal acts that have occurred. On the contrary, the theory of illegal behavior is a kind of prior judgment, that is, according to the idea of compulsory observation, illegality is a violation of objective duty of care. This objective duty of care is based on the standards of ordinary people, and it is foreseen in advance from the standpoint of the actor, regardless of the special understanding of the actor. Generally speaking, an act does not violate the obligation and the legal interests in advance, so the act does not violate the obligation and belongs to the value of the act. On the other hand, it is worthless. Of course, this violation of the objective duty of care should be based on the premise that the actor can foresee it, that is, only when the actor has a plan or foresees that the legal interests are infringed, can there be a legal order that gives individuals the obligation to prevent the objective dangerous state. The time basis of judging illegality in advance is the time of behavior, which is earlier than the time of judging when the result is illegal. By revealing the boundary between the illegality of behavior time and the application of law, it plays its own prompting and informing functions to respond to the requirements of legal order, and at the same time carries out general prevention in a standardized and positive way. The dualism of illegal behavior judges that the object is the infringement of comprehensive legal interests and the duty of care, and the lack of the result of infringement of legal interests means the lack of the violation of objective obligations; On the other hand, without the violation of objective obligations, the result can not obtain its social significance.

From the time point of view, we should start with prior judgment. The main reasons are as follows: First, insisting on pre-judgment is the basic requirement of the behavior itself. Regardless of the behavior law, only the explicit requirements of the legal order or the general duty of safety care when the behavior occurs can produce the behavior norms that people can abide by. Tort law is a kind of appeal to "God", not a kind of requirement to people, by imposing a code of conduct after the event. It violates the basic principle of non-retroactivity of the law and tramples on the basic human rights of the public.

Secondly, insisting on prior judgment is conducive to coordinating the contradiction between the scope of protection of tort law and freedom of action and balancing the interests of all parties involved in the adjustment of tort law. Modern society is a dangerous society, and once the behavior is implemented, it will always lead to certain harmful consequences. Taking the infringement of legal interests afterwards as the point of judging illegality, it is possible that all actions are illegal, which leads to excessive illegality and is not conducive to protecting the freedom of public behavior. Therefore, in the composition of tort liability, the judgment of illegality should be based on the current norms of life and effectiveness, considering whether the behavior is divorced from the specific requirements of the current legal order for a certain behavior, and draw an appropriate or illegal conclusion. The time when an act is found to be illegal is not an after-the-fact judgment beyond time, space and history, but an empirical and transcendental judgment on whether it is suitable for the social legal order based on the time when the act occurred.

Thirdly, the time point of illegality judgment is the time when the behavior occurs, which is conducive to the play of the preventive function of tort law norms. Pre-judgment requires the actor to abide by the existing behavior rules of the legal order, and at the same time, according to a reasonable person's experience and cautious requirements, abide by the standard of duty of care that a reasonable person should abide by under certain circumstances. This requires the actor to make active efforts to prevent the occurrence of damage results in both subjective and objective aspects. The dualism of illegal acts emphasizes positive and normative general prevention. According to the theory of illegal behavior, tort liability is the display of the effect of behavior norms, and the purpose of tort liability is to correct the destroyed norms and maintain them as the standard of social communication. The reason why we say "general" is because the effectiveness of tort liability points to everyone; It is said to be "positive" because the function of tort liability is not to deter, but to cultivate the public's normative consciousness and sense of identity with the law, to stabilize and strengthen the order and trust damaged by the infringement, and to make the object basis of illegality not only become the criterion for judging illegal acts, but also play a guiding role for the actors.

Fourth, the logic of judging illegality.

A problem related to the timeliness judgment of illegal acts is the logical judgment of illegality, that is, "causality" or "causality". There are different views on illegal acts and illegal results. The theory of illegal consequence is "proceeding from the result and reason", that is, deducing the existing result, examining whether the result exists and the size of the result, and analyzing whether there is a conditional causal relationship between the reason and the result on the premise that the result exists. The causal method of illegal results is from result to result, and the starting point and end point of its logical thinking are the same. On the premise of highlighting the damage of legal interests, they don't ask whether the cause of legal interests is human behavior or the movement of things. The theory of illegal behavior adopts "from cause to effect", starting with the investigation of behavior, synthesizing the relevant patterns of behavior, and further analyzing the existence and size of the results along the development track of behavior.

As far as logical judgment is concerned, the logical judgment of causality of illegal acts is preferable for two main reasons: First, the logical structure of illegal acts conforms to the purpose of code of conduct. Behavior has no value, and attaches importance to the subjective and objective elements of human behavior and the function of prompting and informing illegal judgment. The purpose of tort norms lies in human behavior. If the perpetrator is allowed to act at will, the protection of legal interests will become empty talk. Therefore, we should take behavior as the starting point of logical judgment of illegality, ensure that people's behavior conforms to the requirements of social order through norms, and control people's behavior with normative effect, so as to realize the goal of protecting interests.

Secondly, the logical judgment of illegal acts can determine the scope of protection more reasonably and accurately. Judging from the judicial procedure of illegal results, completely illegal results fall into the "trap" of causality. As mentioned above, the result is worthless. Suppose an objective object (Beobachter) explores the conditions that lead to the result. The method of this survey is to push back from the result to the behavior to determine the cause of the result. This method of judging causality is doomed to be an ex post facto judgment. However, the development of technology, industry, transportation and social life are increasingly closely linked, which makes it more and more complicated for individual damage events to be attributed to individual actors as the result of causality, and even "the causal relationship between individual behavior and the specific damage results of victims has become an unanswerable question (such as radiation, air pollution, drug dosage) more and more often." If the tort law insists on the result, the theory of causality will inevitably hinder the effective protection of civil law. In this way, the logical structure under the theory of illegal results usually excessively or even wrongly identifies illegality, which makes the identification of illegality in a dispensable embarrassing situation. The logical structure of the theory of illegal behavior, starting from the factors of behavior itself and accompanying behavior, can determine the existence of illegality by linking behavior with the result of infringing legal interests, so as to determine the scope of protection more reasonably and accurately. For example, the first paragraph of Article 92 of the Regulations for the Implementation of the Road Traffic Safety Law of the People's Republic of China: "If a party escapes after a traffic accident, the escaping party shall bear all the responsibilities." After the traffic accident, the consequences that have caused damage to legal interests are not enough to aggravate civil liability because of escape from the perspective of illegal results. Some people may say that escape affects treatment, so it increases responsibility. But if you don't escape but don't treat, or you want to treat because the hospital is too far away, the effect is no different. It can be seen that the explanation of illegal results is always stretched. Relatively speaking, the logical structure of illegal behavior is much simpler to explain, because the illegality of infringement escape is much more serious than that of pure infringement. He not only violated the personal and legitimate interests of others, but also subjectively evaded responsibility. By judging the relevant factors of behavior, we can draw more accurate conclusions, which is the purpose of the logical structure of worthless behavior.

Verb (abbreviation of verb) conclusion

Under the dualism of illegal behavior, it is the basic position of modern illegality to adhere to the complete theory of purposeful behavior, incorporate subjective elements into the judgment elements of illegality, take the time of behavior as the judgment point, and logically infer the occurrence of results from behavior. The modern illegality theory based on the dualism of illegal acts has the function of reasonably determining the scope of protection of tort law, which is helpful to inform and prompt illegal acts, to make tort liability law play the role of education and prevention of damage, and to promote social harmony.

Hope to adopt, thank you.