论民事侵权中的过错

On fault in tort

在刑法中已为常识的内容——"故意的主观恶性非过失所能比"在民法中却被忽视。通过历史分析的方法发现,过错学说的发展史就是故意学说的灭失史,"故意"逐渐被学者遗忘在过错学说之外。"故意"内容的回归必然影响过错程度在法律责任"量"上的不同,从而产生惩罚性赔偿。

It has been a general knowledge in criminal law that the subjective viciousness of negligence is not to be compared with that of intention, but it is disregarded in civil law. It was discovered that the phylogeny of the fault theory is just the history about the disappearing of the intention theory by analyzing its history which “intention” has been gradually forgotten and placed outside of the fault theory by scholars. So return of the “intention” into the fault theory cannot but lead to different responsibilities in accordance with degrees of fault, thereby punitive damages come into being.