侵权行为之概念研究

A Research on the Conception of Tort

侵权行为迄今为止没有统一的概念。大陆法系界定侵权行为往往与侵权责任相关联,英美法系则侧重于与违约行为的区别。行为人实施侵权行为并不一定需要承担侵权责任。侵权行为成立的要件不同于侵权责任的构成要件,不能以过错、损害事实对侵权行为作出定义。侵权行为的本质要件就在于行为的违法性:违法性的认定以行为人是否违反法定义务为依据,使侵权行为与违约行为区分开来;而违法性的内容是行为人侵害他人受法律保护的人身和财产权益,又使侵权行为与犯罪行为区分开来。

Tort is a concept without a uniform conclusion up to now. The concepts of tort and tortuous liability are confusion in Continental Law System in mainland of China. Most scholars of Anglo-American Law System define the concept of tort based on the differences between tort and breach of contract. It is not always necessary for a torffeasor to assume the tortuous liability. The constitutive elements of tort are different from those of tortuous liabilities. Therefore, tort cannot be defined from the aspects of fault and damages. The essential element of tort is identify the illegality is based on whether the tortfeasor breaches the legal obligations or not guish tort from the breach of contract. The content of illegality is that a tortfeasor infringes property rights, which is the key to distinguish tort from crime. the illegality of the act. To which is the key to distin- others＇ personal rights and