过错的边缘化:误读还是趋势--侵权行为过错要件新论

审判实务中的"过错",其真实意思是"错误",实质上是指存在违法性.传统过错理论边缘化的现象说明对过错概念的理解存在"误读".过错概念的发展经历了从主观过错到客观过错,再到过错概念本身边缘化的趋势.应当以过错(违法性)概念为核心,围绕审判实务,重新构建侵权行为法的理论体系.

Borderline of Fault:A Mistake or Trend - New Analysis on the Fault Essentials of Act of Tort

In the practice of trial, the true meaning of "fault" is "mistake". That refers to the existence of breaking the law in fact. Thus the phenomenon of the traditional theory of the borderline of fault proves there are mistakes in understanding of that concept. The development of the fault concept has been experienced from subjective to objective fault, reached the trend of the borderline of its own at last. Therefore, the concept of fault should be regarded as the core at first, and then the theoretical system of act of tort should be constructed again, rounding the practice of trial.