再论违法性与过错的关系——以法国法与德国法的比较为中心

《德国民法典》与《法国民法典》被认为是关于侵权行为法的两种不同立法例的典型代表。前者将违法性与过错明确区分,后者只规定了过错要件;前者以权利为侵权法体系的核心,后者以义务的构建为侵权法的重心。《法国民法典》与《德国民法典》两种立法例在法律适用中都各有利弊,应相互吸收以完善制度的构建。我国将来制定侵权行为法时,应从我国的传统法律文化背景以及现实的国情出发,并借鉴其他国家的成功经验。

On The Relationship between the Unlawfulness and the Fault——Centering on the Comparison between the French Law and the German Law

German Civil Code and French Civil Code are reputed as the typical representatives of two legislative models on the Law of Tort. The former has kept the elements of fault eparate from that of unlawfulness, the latter has a single concept of fault; the former has centered on the right, but the latter has focused on the duty. French Civil Code and German Civil Code have the advantages and disadvantages in judicial practice. They should reciprocally borrow. We should consider traditional law culture backgrounds and realities of the country, and benefit from the other country＇s experience when we institute the Law of Tort in future.