The constitutive elements of general tort refer to the elements that must be possessed in general. Only with these factors at the same time can the tort be established. The constitutive requirements of general tort include: there is an injurious act, there is a damaging fact, there is a causal relationship between the injurious act and the damaging fact, and the actor is subjectively at fault.
First, it is harmful. Harmful behavior, also known as harmful behavior, refers to the behavior of the actor that causes damage to the civil rights of others. Any civil damage fact is related to a specific injury behavior, that is, the civil damage fact is caused by a specific injury behavior. No harm, no harm will happen.
The injurious act mentioned here is an act without legal evaluation, and its determination is purely based on the consequences of civil damage caused by the act. From the form of expression, the injurious act can be either an act or an omission, but it is mostly in the form of an act, and the omission constitutes an injurious act, generally on the premise that the actor has specific obligations.
In traditional civil law textbooks, this requirement is generally expressed by "illegal behavior" or "illegal behavior", which is of course reasonable, but not accurate enough. Whether it is "illegal behavior" or "illegal behavior", they have actually made a legal judgment on the behavior that causes damage to people. In fact, there is no need to make a legal judgment on the injurious act here, because another element of the general tort, that is, the subjective fault of the actor, is the place to make a legal judgment on the injurious act. Here, as long as it proves to be harmful.
Second, there are damaging facts. The fact of damage mentioned here refers to the adverse effects caused by certain acts or events on the property or person of others. The existence of damage facts is another element that constitutes infringement. Without damaging the facts, there would be no infringement, let alone compensation for infringement damages.
As a constitutive element of tort, the fact of damage has the following characteristics: first, the damage is caused by the infringement of legitimate rights and interests; Second, the damage can be remedied, that is, the damage can be remedied in a certain way; The third is the certainty of damage, that is, the fact of damage does occur, and its size and degree can be measured in a certain way.
Damage facts can be divided into three types according to their nature and content: property damage, personal damage and mental damage.
Property damage mainly refers to the economic loss caused by the actor's violation of the victim's property rights. Such as destroying people's houses and stealing people's vehicles, the economic interests of the obligee are damaged. Property damage includes direct damage and indirect damage. Direct damage is the damage of vested interests, such as the theft of vehicles; Indirect damage is the damage of available benefits, such as the loss of business income due to the theft of vehicles.
Personal injury refers to the damage caused by the perpetrator's infringement on the victim's body. Personal injury refers to the natural person's personal injury, including life injury, physical injury and health injury. At the same time, the personal injury of natural persons often leads to the loss of their property. If it hurts others' health, it will lead them to pay medical expenses and reduce their income.
Mental damage, also known as intangible damage, mainly refers to the mental pain caused by the personality damage or personal injury of natural persons. For example, reputation is illegally infringed, privacy is illegally leaked by others, and physical disability is caused by injury. All these will lead to the mental pain of natural people. Unlike other damages, mental damage is intangible and difficult to measure with money.
Third, there is a causal relationship between the injury behavior and the damage fact. Only if there is a causal relationship between the damage behavior and the damage fact can it constitute infringement. If the offender does cause harm, others have the fact that their civil rights and interests have been damaged, but there is no relationship between them, and it still cannot constitute infringement. Therefore, there is a causal relationship between damage behavior and damage facts, which is another important element of general tort.
Causality refers to an objective connection between social phenomena, that is, one phenomenon will inevitably lead to another phenomenon under certain conditions, then this phenomenon is the cause and the latter phenomenon is the result. The connection between these two phenomena is called causality.
As far as causality in tort law is concerned, it mainly refers to the situation that the damage fact is caused by the damage behavior. For example, A intentionally hurts B's body, which directly leads to B's physical injury. Here, A's injury is the cause and B's physical injury is the result, and there is a causal relationship between them.
Causality in tort law is complicated and has many different forms. Its specific manifestations mainly include:
(1) One cause and one effect, that is, an injurious act leads to a harmful result, and this causal relationship is relatively simple;
(2) One cause has many effects, that is, one harmful behavior leads to multiple damage results;
(3) Multiple causes and one effect, that is, multiple injuries lead to one injury result. This causal relationship is the most complicated.
It is very important to clarify the causal relationship in tort law for the determination of tort civil liability. In practice, some causal relationships are clear and obvious; Some of them are complicated and difficult to determine, and corresponding judicial expertise is needed when necessary.
Fourth, the actor is subjectively at fault. In addition to the above requirements, the subjective fault of the actor is a necessary condition. In other words, only the subjective fault of the actor can constitute a general tort.
Fault is a psychological state in which the actor decides his own behavior. Whether the actor is at fault is directly related to the determination of the nature of his behavior. There is no clear definition of fault in civil law theory, and the identification of fault is mainly based on relevant theories in criminal law. Faults in civil law also include intentional and negligent forms.
It is intentional for the actor to know that his behavior will lead to the result of damaging the civil rights of others, and hope or let the result happen. If you stab others with a knife knowing that it will lead to injury or death, you still stab others with a knife, causing injuries to others, which is an intentional tort.
The actor should have foreseen that his behavior might damage the civil rights of others, but he failed to foresee it due to negligence, or thought it could be avoided, and the civil rights of others were damaged as a result. This is negligence. Whether the actor is at fault should be measured by whether the actor has fulfilled his duty of care. The determination of the actor's duty of care should be based on various factors such as specific time, place and conditions.
In criminal law, whether the actor is intentional or negligent is very important, which directly involves the seriousness of crime and non-crime, crime and misdemeanor. However, in civil law, whether the actor's behavior is intentional or negligent is of little significance to the determination of tort and the assumption of civil liability. Because determining the scope of tort civil liability usually depends on the existence or size of the damage, and it is not different because of the intention or negligence of the actor.
Of course, it is not meaningless to distinguish the subjective fault forms of the actors. Under certain circumstances, such as mixed fault, damage caused by * * *, intentional or gross negligence of the victim, etc., the form and degree of the actor's fault is of great significance to determine his liability for compensation. At the same time, in the application of civil sanctions, the victim's subjective intention is generally the premise. Civil sanctions generally do not apply to acts that cause damage through negligence.