On Illegality of the Composition Elements in Tort Law
|Keywords||illegality composition elements norms violation interpretation|
Illegality in tort composition is the creation of German tort law. It is closely related with the structure of the three elements in tort law, which introduced from German criminal law. By comparing with the value and the structure of criminal law, we will see the starting point of tort law is damage, not behavior. The abstractness of behavior mode result in illegality can not be an independent element. The nature of illegality is the violation of law norms, by way of interpreting, illegality element could be mixed with damage element or fault element, so there is no necessity of independent in function. The structure of the three elements in tort law and the closeness of its general term lead to illegality is lack of flexibility, which should balance protection of rights and freedom as a tool. So we must abandon the illegality in our tort law as an interpretation tool.