论违法与过错认定——以德美两国法的比较为基础

Illegality and Determination of Fault

违法与过错认定关系密切。德国侵权法规定,违反保护性法律即推定或推论行为人有过错。美国法上行为"本身即侵权"理论则确认,违反保护性法律即被推定有过错,违反非保护性法律被视为存在过错的相关证据。保护性法律的特征体现在个别保护、受保护主体、客体等方面,对其甄别主要依靠法律解释。被违反之法律的特性与过错认定的强度有直接关联。此规则勾连了侵权法与其他部门法,有效地统合了违法与过错,并有利于保护受害人,理应为我国侵权立法所借鉴。

Illegality is closely related to the determination of fault. German tort law prescribes that an actor who violates a protective law shall be presumed to be in fault. The theory of ＂tort per se ＂ in U. S. law confirms that fault shall be presumed on account of violation of protectire law and the violation of non - Protective law is characterized by pro the tective law shall be deemed as evidence of existence of fault protection of individuals as well as by the subjects and objects of protection, and it can be distinguished from other laws mainly by way of legal interpretation. There is a direct connection between the nature of the law violated and the extent of fault determined. This rule serves as a link between tort law and other branches of law, effectively integrates illegality and fault, is conducive to the protection of victims, and therefore should be taken as reference by Chinese legislature in the formulation of tort law.