Research on modern French tort liability system: tort is a civil illegal act against someone; Crime, on the other hand, is an illegal act against individuals, society or the country in violation of the provisions of the interests guaranteed by the state.
There is a big difference in subjective fault between the two. Tort fault includes intention and negligence. Usually, we only need to realize our own imputability, and we don't need to realize the actual damage that our actions may bring. The fault in criminal law should not only realize the imputability (illegality) of one's own behavior, but also realize the harmful results that one's own behavior may cause. However, there are great similarities between tort law and criminal law. The biggest similarity is that both of them violate certain rights. Based on this, there is little difference between American criminal law and tort law. From the above point of view, we can have a comprehensive understanding of the rights in the whole constitution by studying tort law and criminal law together. Judging from the history of criminal law, criminal law was born out of tort law.
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key component
be illegal
Infringement mentioned in the copyright law refers to the act of violating the obligations stipulated in the copyright law and infringing on the personal rights or property rights enjoyed by others according to the copyright law. If the infringement of others' property rights is directly based on the breach of contractual obligations, this behavior is usually regarded as a breach of contract, and the actor should bear the responsibility for breach of contract.
In general, an act that constitutes an infringement of copyright or copyright-related rights and should bear tort liability shall meet the following conditions:
This is illegal. The Copyright Law stipulates that citizens, legal persons or entities without legal personality with certain qualifications shall enjoy copyright or copyright-related rights and interests, and it also stipulates that the relative obligations of other owners shall not be hindered. Violation of these obligations is a violation of the law. In some cases, the law does not stipulate the relative obligations of others, so there will be no illegal acts. For example, using works or materials that are not protected by copyright, using them without the permission of the copyright owner according to law, and exercising copyright or uncontrolled rights and interests related to copyright do not belong to infringement in copyright law.
Damage the fact
Objective existence damages facts. Damage refers to the property loss and mental damage caused by behavior. Damage is the objective consequence of illegal behavior. If an act is being planned and does not cause damage, it does not constitute infringement. For example, the publishing house took the author's manuscript without authorization and prepared to publish it, but it was not published for some subjective reasons, so it did not constitute infringement. But if it has been published, even if a book has not been sold, it should be regarded as infringement.
causality
There is a causal relationship with the damage facts. In other words, the implementation of an act is the cause of damaging the factual results. For example, a certain B rewrites an article according to a certain A, and submits it to a newspaper for unauthorized publication. This behavior of a certain B has caused damage to the facts, so it has the conditions for infringement. If a certain B just practices writing and rewrites an article from a certain A into another article, which was not intended to be published, but was read by an enthusiastic C and recommended to the newspaper for publication without authorization, it should be determined that there is a causal relationship between the behavior of a certain C and the fact that a certain A was damaged. As for the rewriting of a B just for practicing writing, it should be within the scope of reasonable use and has no necessary causal relationship with the damage facts.
Bear civil liability
The person who commits the act is at fault, or although there is no fault, he still bears civil liability according to law. That is to say, the actor knew the harmful consequences of an act when he implemented it, or he should have foreseen it but didn't, or he had foreseen it and trusted it and avoided it. For example, a publishing house knows that a work has copyright, or does not think that it has no copyright, but publishes the work without the consent of the copyright owner. This kind of intention or negligence is a fault, so there are conditions for infringement. If A publishing house publishes B author's works without knowing that B author has a guarantee, and then A author claims that B author's works are infringing products, the publishing house immediately stops publishing and investigates and verifies that the publishing house is not at fault, and usually only B author bears the tort liability; If the publishing house does not stop publishing, the publishing house is also at fault if the work of author B is indeed an infringing product, so it is jointly and severally liable with author B as the infringer. In addition, if the law clearly stipulates that the actor should be liable for damages even if there is no fault, then the actor is also an infringement.
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Tort liability and contract liability
Tort law regulates the legal relationship between ordinary people (that is, "general protection obligation"), which is different from contract law in regulating the legal relationship between specific counterparts (that is, "special protection obligation"). Therefore, in the development of civil law system (especially German law), compared with the expanding scope of contract liability (such as contracting fault liability, contract to protect the effectiveness of the third party, collateral obligation and the theory of active infringement of creditor's rights), tort liability is indeed so.
In tort law, the obligor assumes mostly negative obligations of omission, while in contract law, due to the contact of the parties, he often assumes positive obligations. In addition, contract law usually needs to protect the trust interests between the parties, but tort law does not. Judging from the existing legal practice in China, the difference between the two is that the liability for breach of contract caused by contract law cannot claim compensation for mental damage, while the tort may bear the responsibility for mental compensation.
Concept and characteristics of tort civil liability
(1) The concept of tort civil liability
Citizens and legal persons who infringe upon the property of the state or the collective or the property or person of others due to their faults shall bear civil liability.
If there is no fault, but the law stipulates that it should bear civil liability, it should bear civil liability.
(2) the characteristics of tort civil liability
① Tort civil liability is legal liability, not moral liability;
(2) Tort liability is a civil legal liability, not a criminal or administrative liability;
③ The way to bear tort liability is mainly property liability;
④ Tort liability is mainly compensatory.
Composition and mode of responsibility
compose
If the actor infringes upon the civil rights and interests of others due to his fault, he shall bear the tort liability.
If the actor damages the civil rights and interests of others, regardless of whether the actor is at fault or not, if the law stipulates that he should bear tort liability, such provisions shall prevail.
Where two or more persons jointly commit an infringement and cause damage to others, they shall be jointly and severally liable.
Those who instigate or help others to commit tort shall be jointly and severally liable with the perpetrator.
If two or more people commit acts that endanger the personal and property safety of others, and the acts of more than one person cause damage to others, and the specific infringer can be identified, the infringer shall bear the responsibility; If the specific infringer cannot be determined, the actor shall bear joint and several liability.
Where two or more persons commit torts separately, causing the same damage, and the torts of each person are enough to cause all damage, the actors shall be jointly and severally liable.
If two or more persons commit infringement separately, causing the same damage, and can determine the size of the responsibility, each person shall bear corresponding responsibilities; If it is difficult to determine the size of the liability, it shall bear the same liability for compensation.
If the law stipulates joint liability, the infringed party has the right to request some or all of the joint liability persons to bear the liability.
The jointly and severally liable persons shall determine the corresponding compensation amount according to their respective responsibilities; If it is difficult to determine the size of the liability, it shall bear the same liability for compensation.
A jointly and severally liable person who pays more than his own compensation has the right to recover from other jointly and severally liable persons.
way
(1) Stop the infringement;
(2) remove obstacles;
(3) eliminating danger;
(4) returning property;
(5) restitution;
(6) Compensation for losses;
(7) apologize;
(eight) to eliminate the influence and restore the reputation.
The above tort liability methods can be applied separately or in combination.