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非法性是不是侵权责任的构成要件?如果是,它同过错的关系如何协调?对于这样的问题,一直存在很大的争议。本文从各国关于“违法性”和“过错”的概念、判断标准入手得出结论,过错的判断经历了一个从主观到客观的发展过程,违法性的判断也经历了一个从“结果不法”到“行为不法”的发展历程。这样的发展状况,使在理论本应由过错负责判断行为人的主观意志,由违法负责具体判断行为适当性的清晰界限变得模糊,二者在采用合理人注意义务的标准上发生了重合。因此,价值层面上对二者的划分在实践中已经变得没有意义。我们在依据过错责任原则认定侵权责任时,应将过错等同于非法行为,这样既顺应了侵权法的发展趋势,也符合我国侵权法立法结构。
Whether illegality is a component of tort liability and if so, how does it coordinate with fault? There has always been much controversy over such issues. This article starts with the conclusion of the concept and judgment standard of “illegality” and “fault” in each country. The judgment of fault goes through a process of development from subjective to objective, and the judgments of illegality also go through one from “The result is not law” to “behavior is illegal” course of development. This development made it clear that the theory should have judged the perpetrator’s subjective will based on fault, and that the illegitimate legally responsible specific judgment of the appropriateness of the act became ambiguous. The two coincided with the criteria for using reasonable care obligations. Therefore, the division of the two at the value level has become meaningless in practice. When we identify the tort liability according to the principle of fault liability, we should equate the fault with the unlawful act, which not only conforms to the trend of tort law but also conforms to the legislative structure of tort law in our country.