1. Concept

A perpetrator who infringes upon a person's property and other legitimate rights and interests shall bear civil liability in accordance with the law.

“It is generally believed that a tort is first of all a civil wrongful act, that is to say, a tort violates a certain responsibility stipulated by the law - this kind of responsibility is strictly prohibited by law; A tort is also an act that causes harm to others, and the infringer must compensate the injured person. ”

II. Concept definition

The constitution of the tort. , there are two legislative examples: one is the method adopted by Roman law and common law countries to separately stipulate the requirements and effects for each individual type of tort; the other is like Article 1382 of the French Civil Code, which regulates infringement The method of setting general provisions on the elements and effects of behavior (making the person who caused damage due to faute bear the obligation to compensate). Judging from the works of Chinese scholars, they are generally enthusiastic about the latter, that is, adopting the method of general abstract and general definitions. According to the former, it seems that we can draw the conclusion that it is impossible to give a unified concept of infringement; according to the latter, it seems that it is difficult to achieve a unified understanding. Where is the way out? This article believes that torts, as a type of social phenomenon, must have unique characteristics. As long as we summarize the unique things from each special and specific tort, we can give a more scientific definition of torts. The concept is still possible.

Guiding ideas for defining the concept of torts

1) The concept of torts should reflect the unique characteristics of various torts

Scholars hope to Provide a unified definition of infringement. "The focus of this definition lies in the operability of the specification. Since the definition gives the identification signs and constituent elements of the infringement, the judge can make a judgment as long as he determines whether the facts of the case meet the legal conditions according to the syllogism reasoning method. Such a definition That is to say, it has become the prerequisite for the implementation of the law and the embodiment of the unity and stability of the law.” The reason why the civil law academic circle currently has different understandings of the constitution of torts and has formed three elements, four elements, or even five elements and six elements is precisely because they ignore it. Discover the reasons or basis for its universality from various specific infringement behaviors. Although torts vary widely, their common feature is that the legitimate rights and interests of others recognized and protected by the law are infringed upon by some act. The tortfeasor is the subject, and the infringed object is the legitimate rights and interests of others recognized and protected by the law. The subject acts on the object through various tortious behaviors and becomes the intermediary between the subject and the object. In the relationship between subject, behavior and object, the object is single, while the subject and behavior are multiple and complex. The singularity of the object provides the basis for defining the concept of tort.

2) The connotation of torts should be the unique essential attributes of various specific torts

Historically, the expressions of the concept of torts are far less complicated than those of modern scholars. In the "General Theory of Laws" written by Justinian, the world-famous masterpiece of Roman law, "the word injuria (injuria), generally speaking, refers to all violations of the law." Divided into public crimes (delicta publica) and private crimes (delicta p rivata). 1 At that time, public crimes referred to crimes such as collaborating with the enemy, treason, and other crimes that endanger national interests, while private crimes were crimes against private property or persons." It can be seen that torts in Roman law. Behavior is an act that infringes upon private property or person. Both simple and clear. The shortcoming of this concept is that not all behaviors that infringe on the rights and interests of others can be recognized as infringements, but must be behaviors that confirm and protect the rights and interests of others by the law. As the theoretical premise of various specific torts, torts should comply with the "simplest principle".

The so-called simplest principle means that by extension, it can include all infringements. In terms of connotation, it can focus on the most basic units and factors that are common in various torts, and eliminate all the special factors that are present in different types of infringements. To use a term in mathematics, it is to find the "greatest common divisor" between numbers. The less special factors such a concept reflects in various specific infringements, the smaller the probability that people will make mistakes in understanding and identifying infringements.

This is just as Einstein said: "When the basic concepts and axioms are getting farther and farther away from observable things, so that it becomes more and more difficult and time-consuming to use facts to verify the meaning of the theory, this kind of The argumentation method will definitely play a greater role in the choice of theory. ”

3) The concept of tort should conform to the scientific logical structure

Logic tells us that the concept should reflect. The essential properties of things. For a concept to reflect the essential attributes of things, it must first start by examining the specific thing or phenomenon, and then combine the various parts, factors and attributes of the object or phenomenon under study into a unified whole for inspection, comparison and analysis. Then the essential attributes of the object or phenomenon are abstracted, and the remaining attributes are temporarily put aside without examination, and the transition from understanding the special essence of individual things to understanding the unique essence of similar things is made. This method is the method of analysis, synthesis, abstraction and generalization. The objective basis of generalization is that things of the same type have universal attributes. This universal attribute is not only possessed by an individual thing, but also by things of this type. Concepts that can reflect the essential attributes of the same type of things are genus concepts, and concepts that can reflect individual things in the same type of things are species concepts. The relationship between the concept of tort and the concept of specific tort should be consistent with the relationship between the concept of genus and the concept of species.

A brief explanation of the object, subject and behavior of infringement:

1. The object of infringement is the rights and interests recognized and protected by law

About Whether the rights and interests are recognized and protected by law can be determined in three situations: One situation is that the object of the infringement is an interest that is absolutely protected by law. This kind of rights and interests is cosmopolitan, that is, everyone in the world has the obligation not to infringe, and the obligator is not specific. No matter who it is, anyone who infringes upon this right is an infringement. For example, under normal circumstances, the personal rights and property rights of civil subjects are rights and interests absolutely protected by law. Another situation is that the object of the infringement belongs to the object of "relative protection" of the law. That is to say, the law allows actors to harm objects within a certain scope or under certain conditions. The law does not prohibit, condemn, or even encourage such harm. The law only provides protection if the perpetrator violates these conditions. For example, when a doctor treats a disease and saves a patient, he not only has to remove the disease from the patient, but also for the benefit of the patient, when removing the patient, he must also remove some of the patient's good organs or body. This is done as a last resort to save the patient's life, and this behavior certainly does not constitute infringement. If this situation is exceeded or these conditions are not met, and other organs or bodies are removed from the patient that should not be removed, this is an infringement of the legitimate rights and interests protected by the law and should be considered an infringement. For example, a certain hospital, which was highly publicized by the media, even removed the patient's uterus in order to treat appendicitis. For another example, in competitive sports, if an athlete injures an opponent's body due to reasonable collision under the premise of abiding by the rules of competitive sports, this is allowed by the law and does not belong to the rights recognized and protected by the law, and cannot be regarded as an infringement. If an athlete violates the rules of competition and intentionally injures an opponent, it should be considered an infringement. Because the person of the injured athlete in this case belongs to the rights recognized and protected by law. Third, the object of the infringement belongs to "objects that are not recognized and protected by law." For example, killing or injuring a criminal suspect in order to stop him from committing murder is considered "legitimate defense" and naturally does not constitute an infringement.

2. Identification of the subject of infringement

When determining infringement, the infringement should be distinguished from the specific liability for infringement. Traditional civil law theory holds that since an incapacitated person does not have the capacity to act, there is no infringement issue with his or her actions. This view is questionable. Infringement and the specific assumption of tort liability are two issues of different natures. Article 133 of the General Principles of the Civil Law of China stipulates: “If a person without capacity for civil conduct or a person with limited capacity for civil conduct causes damage to others, the guardian shall bear civil liability.” If we say that the General Principles of Civil Law here explains the nature of the behavior “causing damage to others” If it is not clear enough, then the "Opinions of the Supreme People's Court of China on Several Issues Concerning the Implementation of the General Principles of the People's Republic of China and Civil Law (Trial)" makes it clearer.

Article 22 of it stipulates that "a guardian may entrust part or all of his guardianship duties to others. If the guardian needs to bear civil liability due to the infringement behavior, the guardian shall bear it." Here, the Supreme People's Court considers the guardian's "behavior that causes damage to others" Defined as an infringement. Among them, the ward naturally includes the incompetent person. Based on this, there is every reason to believe that a person without capacity for civil conduct can become the subject of infringement, and his behavior can constitute a tort, and it is not necessarily related to whether he specifically bears civil liability.

3. Identification of the "act" of infringement

Traditional civil law theory links infringement with the actor's ability to understand and judge the consequences of his actions. It is believed that a person with incapacity does not have the capacity to conduct torts because he cannot identify and judge the consequences of his actions. This article believes that it is unnecessary to impose too many subjective factors on the determination of infringement. Life practice proves that there are two kinds of torts: one is subjective no-fault infringement, including torts by incompetent persons and "good intentions doing bad things"; the other is fault infringement, which is intentional or negligent infringement. The consequences of these two torts on the victim are essentially the same. Infringement is a factual act. "A factual act (realakte) is an act that is legally effective based on the state or process of the fact and the results produced by the law." It can be seen that factual behavior does not emphasize the subjective factors of the actor. British jurist Flemiming believes that "regardless of whether the infringer is subjectively blameworthy, the innocent victim should receive compensation."

It can be seen that infringement is defined by whether it infringes upon the rights recognized and protected by the law. The nature of behavior has the basis of law and social practice.

Special torts

1. Civil liability for damage caused by public officials of state organs

Damages caused by public officials of state organs to others in the performance of their duties, Civil liability will only be borne by state agencies if the law stipulates it and if the performance of duties is improper. If a public official of a state agency uses his authority to intentionally cause harm to others, the public official shall bear civil liability. If a public official of a state agency causes harm to others, except when performing his duties, he shall also bear civil liability.

2. Civil liability for tortious acts in employment activities or employment relationships

Engaging in employment activities refers to engaging in production and business activities or other labor activities within the scope authorized or instructed by the employer. If an employee's behavior exceeds the scope of authorization, but its performance is in the performance of duties or is intrinsically related to the performance of duties, it shall be deemed to be engaged in employment activities. According to Article 9 of the Interpretation on Personal Injury Compensation, if an employee causes injury to someone while engaging in employment activities, the employer shall be liable for compensation; if an employee causes injury intentionally or with gross negligence, he shall bear joint liability with the employer for compensation. If the employer is jointly and severally liable for compensation, it may recover compensation from the employee.

3. Civil Liability for Tortious Acts in Helping Activities

If a helper who provides free services to others causes harm to others while engaging in help activities, the worker being helped shall bear civil compensation. responsibility. If the worker being helped explicitly refuses to help, he will not be liable for compensation.

IV. Civil Liability for Damage Caused by Product Defects

If product quality is unqualified and causes property or personal damage to others, the product manufacturer or seller shall bear civil liability in accordance with the law. If the transporter or warehouse is responsible, the product manufacturer or seller has the right to claim compensation for losses.

There are three reasons for product manufacturers to be exempted from liability: (1) The product has not been put into circulation; (2) The defect causing the damage did not exist when the product was put into circulation; (3) The product has been put into circulation. The scientific and technological level at the time of circulation could not detect the existence of defects. At the same time, the law stipulates that if damage is caused intentionally by the victim, producers and sellers are not liable for compensation. If damage is caused by the victim's fault, the liability of producers and sellers can be reduced.

V. Civil Liability for Damage Caused by Highly Dangerous Operations

Engaged in high-altitude, high-pressure, flammable, explosive, highly toxic, radioactive, high-speed transportation vehicles, etc. that have a high degree of impact on the surrounding environment. If dangerous operations cause damage to others, you should bear civil liability; if it can be proven that the damage was caused intentionally by the victim, you will not bear civil liability.

6. Civil liability for damage caused by road traffic accidents

If a traffic accident involving a motor vehicle causes personal injury or property loss, the insurance company shall provide compulsory motor vehicle third party liability insurance. Compensation shall be made within the limit of liability.

For the portion exceeding the liability limit, liability shall be borne in the following manner: (1) If a traffic accident occurs between motor vehicles, the party at fault shall bear the liability; if both parties are at fault, the liability shall be calculated according to the proportion of their respective faults. Share responsibility. (2) If a traffic accident occurs between a motor vehicle and a non-motor vehicle driver or pedestrian, the motor vehicle party shall bear the responsibility. However, if there is evidence that the non-motor vehicle driver or pedestrian violated road traffic safety laws and regulations, the motor vehicle driver shall If the person has taken necessary disposal measures, the liability of the motor vehicle party will be reduced.

Losses in traffic accidents are caused intentionally by non-motor vehicle drivers and pedestrians, and the motor vehicle party is not responsible.

7. Civil liability for environmental pollution causing damage to others

Whoever violates national regulations on environmental protection and prevention of pollution and pollutes the environment and causes damage to others shall bear civil liability in accordance with the law.

There are three grounds for exemption of damage caused by environmental pollution: (1) It is entirely due to an irresistible natural disaster and the environmental pollution damage cannot be avoided even after timely and reasonable measures are taken; (2) The pollution damage is The pollution damage is caused by the fault of the victim; (3) The pollution damage is caused by the fault of a third party.

8. Civil liability for damage caused by ground construction

Digging pits, repairing and installing underground facilities, etc. in public places, roadsides or passages without setting up obvious signs and If safety measures are taken to cause damage to others, the constructor shall bear civil liability. The elements that should be met to constitute this infringement are: (1) The construction work should be carried out in public places, roadsides, passages and other places that may endanger pedestrians. (2) The builder did not set up obvious signs or take safety measures. (3) There are facts of damage. (4) The builder is at fault. (5) There is a causal relationship.

9. Civil Liability for Damage Caused by Buildings and Other Facilities

Buildings or other facilities, as well as objects placed or suspended on buildings collapse, fall off, or fall, causing damage to others. , its owner or manager shall bear civil liability, except those who can prove that they are not at fault.

The owner or manager shall be liable for compensation in the following circumstances, unless he can prove that he is not at fault: (1) Roads, bridges, tunnels and other artificially constructed structures cause damage to persons due to defects in maintenance and management. of. If damage is caused by defects in design or construction, the owner, manager, and the designer or constructor shall bear joint liability. (2) Stacked items roll or slide or the stacked items collapse, causing personal injury. (3) Trees fall, break, or fruits fall, causing damage to people.

10. Civil liability for damage caused by raised animals

If a raised animal causes damage to others, the animal keeper or manager shall bear civil liability; if the cause is caused by the fault of the victim, If damage is caused, the animal breeder or manager shall not bear civil liability; if damage is caused due to the fault of a third party, the third party shall bear civil liability.

There are two grounds for exemption from harm to animal breeders and managers: (1) Damage caused by the victim’s fault. (2) Damage caused by the fault of a third party.

11. Civil liability for damage caused by persons without capacity for civil conduct or persons with limited capacity for civil conduct

Where persons without capacity for civil conduct or persons with limited capacity for civil conduct cause damage to others, The guardian shall bear civil liability. If the guardian has fulfilled his guardianship responsibilities, his civil liability may be appropriately reduced.

12. Civil liability for infringements in business activities or other social activities

Natural persons, legal persons, and other organizations engaged in business activities such as accommodation, catering, entertainment, or other social activities, If the safety protection obligation is not fulfilled within reasonable limits and causes personal injury to others, the person shall bear civil liability for compensation in accordance with the law. If damage occurs due to the infringement of a third party, the third party who committed the infringement shall bear the liability for compensation. If the safety guarantee obligor is at fault, he shall bear corresponding supplementary compensation liability to the extent that he can prevent or stop the damage. After the safety guarantee obligor assumes responsibility, he may recover compensation from the third party. If the holder of the right to compensation sues the person with the security obligation, the third party shall be listed as the co-defendant, unless the third party cannot be identified.

Components

The dispute over the above elements.

It mainly focuses on the following factors, namely: fault, illegal behavior, and whether the fact of damage is a necessary component of the tort. The “elements” of infringement should be essential conditions for all infringements. Only when the lack of this condition cannot constitute an infringement can it be called an "element"; otherwise, it cannot be called an "element". When a certain condition is only necessary to constitute a certain type of tort, but not a necessary condition for all torts, such conditions should not be regarded as "essentials" of the concept of torts. In line with this guiding ideology, let us discuss several elements in the dispute:

1. Fault

According to Chinese academic circles, it refers to "the perpetrator's fault when engaging in illegal acts" The psychological state is divided into two types: intentionality and negligence. The so-called intentionality means that the actor knows that his behavior may have certain legal consequences, but still carries out such behavior, and the so-called negligence refers to the occurrence of the illegal consequences. The actor should have foreseen the possible illegal consequences of his actions, could have foreseen them but failed to foresee them, or even though he had foreseen them, he believed that they would not happen, resulting in illegal consequences." It can be seen that fault mainly refers to the subjective consciousness of the actor. . This article believes that fault should not be a constitutive element of tort:

(1) From the perspective of Chinese legislation, Article 106 of China's "General Principles of Civil Law" stipulates: "There is no fault, but civil liability is stipulated by law. , should bear civil liability.” Accordingly, China’s General Principles of Civil Law adopts a broad concept of torts, including both fault-related torts and behaviors that are not at fault but subject to civil liability under the law. Fault tort is a subordinate concept of tort; as a subordinate concept, "tort" should not have its place.

(2) From the perspective of judicial practice, when the court determines certain infringements, it can sometimes determine it as an infringement based solely on the behavior itself, without the need to explore the inner feelings of the actor. Subjective fault. For example, the act of counterfeiting someone else's registered trademark is sufficient to constitute infringement in itself, and there is no need to explore the perpetrator's inner psychological state. Third, in many cases, as long as the actor's behavior infringes upon the legitimate rights and interests recognized and protected by the law, even if the actor has no fault in his heart, it should still be considered a tort. "People who do bad things with good intentions" are one type. Although it is "well-intentioned", it infringes upon others and cannot but be regarded as "infringement". There are also such examples abroad. There is a "shull of egg-shell" principle in American tort law, that is, the plaintiff has a "head as thin as an egg shell", and the defendant pats his head like an ordinary person because of "joking", but caused the death of the plaintiff. In this case, the defendant had "absolutely no intention" to harm the plaintiff. The defendant did not foresee and should not have foreseen that his actions would cause the plaintiff's death. But the defendant is still responsible for his or her actions. What constitutes the infringement element here is his "behavior and its consequences" rather than "inner fault".

(3) The focus of tort law protection should be on innocent victims. Even if the perpetrator has no intention or negligence, but causes damage to others, relief should be provided to the victim. In this regard, the famous American judge O1W1 Holmes has a very wonderful discussion: "If a person who is born reckless and stupid is always causing trouble, either hurting others or harming himself, then there is no doubt that his congenital defects will be judged in the court of heaven. He will be forgiven, but the trouble he has inadvertently caused his neighbors is no less than the trouble he caused by criminal negligence, so his neighbors demand that he live up to their standards or bear the consequences; and it is up to those neighbors to do so. A court established by a person will not consider his personal shortcomings."

2. "Illegal"

"Illegal" refers to the negative evaluation of the behavior by the law. Whether "illegal" can be used as a constitutive element of infringement? There is a question of how to measure "illegal". There are two standards for measuring the "illegality" of an act: One is based on the object of the infringement, which holds that any act that infringes upon the legitimate rights and interests protected by the law is an illegal act. This standard was reflected in the opinions of the Second Drafting Committee against the First Drafting Committee when drafting the German Civil Code at the end of the 19th century.

The Second Drafting Committee objected to the second paragraph of Article 704 of the Civil Code drafted by the First Drafting Committee, believing that this paragraph allows any victim to enjoy the right to compensation for damages regardless of whether the law violated was to protect his affected interests. Such laws go too far. It is argued that the tortfeasor shall be liable for compensation to the victim only when it infringes upon the legal interests of the victim. The German Civil Code finally adopted the opinions of the Second Drafting Committee and formed Article 823 of the German Civil Code, which was promulgated and implemented in 1990. Another standard is to define whether an infringement is "illegal" based on the nature of the act itself. If the actor's behavior itself is legal, even if the behavior infringes upon the legitimate rights and interests of citizens and legal persons, the behavior cannot be defined as a tort, and it can even become a reason to prevent the violation of the law. Emergency avoidance is a legal behavior recognized by traditional civil law theory. Some civil law textbooks not only do not mention that emergency evacuation may also cause "infringement", but also believe that emergency evacuation can be a reason to prevent violation of the law. This article believes that everything has duality. Whether emergency evacuation can constitute an infringement should be analyzed in detail based on the specific circumstances. For example, "If a fire breaks out at the city gate, it will affect the fish in the pond." There is no doubt that putting out the fire is a legal act. But from the perspective of the owner of the pond fish, if his property is damaged for no reason, isn’t that an infringement? Judging from the reality of Chinese social life, many legal behaviors also cause infringement damage. If a factory discharges pollutants in accordance with national standards, this is considered a legal act. However, even if the factory discharges pollutants legally, compensation will still be paid to residents in surrounding communities if it causes damage. On November 28, 2001, CCTV's Oriental Time and Space program broadcast that the installation of a certain high-voltage power station was completed in compliance with national requirements, but the three daughters of a nearby resident all suffered from a strange disease due to the impact of the installation of the high-voltage power station. Sue the power station. Can it not be considered an infringement just because it "fully complies with national regulations"? The reality of social life has challenged the traditional tort theory. Some scholars have correctly pointed out: “Although infringement is a civil legal fact, it is difficult to completely attribute it to illegal or legal acts. It should be considered that most torts are legal facts that are illegal acts, and there are also legal acts. "The legal fact of infringing upon the rights of others." Therefore, from the nature of the act itself, it is difficult to regard "illegal" as a constitutive element of infringement.

3. Facts of damage

Damage includes not only material or monetary damage, but also personal injury, death and mental damage. Many academic works regard the fact of damage as an indispensable element to constitute a tort. It is believed that “mere conduct without damage does not constitute an infringement.” “Various infringements have different degrees and the consequences are not exactly the same. A minor infringement may cause minimal damage, but in any case, there is no Damage does not constitute an infringement. "Under normal circumstances, infringement will cause damage, which is normal. But is it so absolute that any infringement causes harm? It’s debatable. From the perspective of causation, infringement is the cause and the fact of damage is the effect. From a criminological perspective, there are "criminal preparations" and "criminal attempts." Even if these behaviors do not cause harm, they do not affect the condemnability of their actions. Infringement and damage facts are two different concepts. Tort is a summary of the nature of tortious behavior, while damage facts are the consequences caused by infringement. In most cases, infringement will cause some degree of damage, but there are exceptions. Examples from real life can prove this: a certain factory printed someone else’s registered trademark without authorization and put it on its own products in preparation for sale. After being reported, the counterfeit trademark was seized and destroyed by the Industrial and Commercial Bureau. In this case, the factory’s behavior did not cause any economic losses or mental losses to the trademark owner, but does this mean that it cannot be considered an infringement? Can a registered trademark holder be required to bear civil liability for an apology? In British and American tort law, there are nominal damages and substantive damages. Nominal damages refer to damages that are used to confirm the rights that have been violated when no actual damage has been caused, although the victim has the right to claim compensation. [In some countries with civil law systems, such as Japan, the University Bathroom Incident was ruled by the Grand Court of Appeal on November 28, 1925 that the establishment of an infringement does not necessarily necessarily constitute an infringement of certain rights.

It is not difficult to see that infringement without damage does exist. It does not mean that infringement cannot be constituted without the fact of damage.

Through the above analysis, it can be seen that fault, violation of law, and facts of damage are not necessarily the constituent elements of infringement under certain circumstances. "Any form of movement contains its own special contradictions. This special contradiction constitutes the special essence that distinguishes one thing from other things." The reason why torts are diverse and varied is because each Each kind of infringement has its own particularity. The formation of this particularity lies in the difference in time, place and conditions. Everything is transferred based on certain time and place conditions. Sometimes, an act itself can constitute infringement without other conditions, such as counterfeiting someone else's well-known trademark. Sometimes it is not possible to determine whether a single act constitutes an infringement, and other conditions are needed to match it. For example, A and B have a quarrel. A is angry and chases B with a stick. Because B runs fast, A fails to hit him. Although A clearly intended to harm B, it did not constitute a tort because it failed to cause damage to B's person or property. In this case, the constitution of A's infringement requires two conditions: intentional behavior and the fact that the behavior caused damage to B. It is obviously unrealistic to force these two different types of infringement into the framework of three elements and four elements.

Characteristics of behavior

1. Infringement is a unilateral factual act

Infringement occurs based on the intention of the party concerned, and the infringement is The resulting civil legal consequences were not what the parties had expected, so the infringement was a factual act.

2. Tort is a kind of civil violation

The illegality of infringement is that it violates the provisions of the law and is not allowed by the law. Its essence is a violation of the obligations stipulated by the law. What is called a legal obligation here. Article 5 of the General Principles of Civil Law stipulates that the legitimate civil rights and interests of citizens and legal persons are protected by law and may not be infringed upon by any organization or individual. Regarding absolute rights such as property rights and personality rights, any organization or individual has a general obligation not to infringe upon them. This general duty is the main source of legal obligations on which torts are based. In addition, creditor's rights can also be the object of infringement, but a higher threshold is required to constitute a waist.

Secondly, the legal obligations here also include special obligations imposed by the law on certain specific entities. For example, Article 37, paragraph 1, of the Tort Liability Law stipulates that hotels, shopping malls, banks, stations, entertainment venues If managers of public places or organizers of mass activities fail to fulfill their safety obligations and cause harm to others, they shall bear tort liability. Article 38 of the Tort Liability Law stipulates that if a person without the capacity for civil conduct is personally injured while studying or living in a kindergarten, school or other educational institution, the kindergarten, school or other school or other educational institution shall bear liability, provided that it can prove that Those who have educational or management responsibilities will not be held responsible. Article 39 of the Tort Liability Law stipulates that if a person with limited capacity for civil conduct suffers personal injury while studying or living in a school or other educational institution, and the school or other educational institution fails to perform its education and management duties, it shall bear liability. Accordingly, managers of public places or organizers of mass activities have the obligation to ensure safety. Educational institutions have the obligation to educate and manage the people without capacity for civil conduct and those with limited capacity for civil conduct who study and live in the institution. Another example is the labor safety protection obligations stipulated in the labor law. If these legal obligations are breached, the obligor may commit a tort.

Thirdly, the legal obligations here also include certain specific actions or omissions set by tort law. For example, Article 125 of the "General Principles of Civil Law" stipulates that digging holes on public roads , When repairing, obvious signs should be set up. Article 91, Paragraph 1, of the Tort Liability Law stipulates that if digging pits in public places or roads, installing underground facilities, etc., without setting up obvious signs or taking safety measures and causing damage to others, the constructor shall bear civil liability. . This obvious sign is a mandatory obligation. If the actor violates his duty of conduct by failing to set up obvious signs, he shall not be liable for tort liability for the resulting damage to others.

3. Torts are behaviors that harm others

The objects of torts include civil rights and civil interests.

The civil rights violated by infringement include personal rights, property rights, inheritance rights, intellectual property rights and other absolute rights, and generally do not include creditor's rights. In addition to civil rights, other legitimate interests also fall within the scope of protection of tort law.

4. Tort is the basis for tort liability

A tort is an act that can cause civil legal consequences. This legal consequence is that the infringer should bear tort liability.