Theoretically, there are many differences between intentional infringement and negligent infringement. It is not only lazy, but also imprecise and unscientific to simply call it a fault without exploring the substantive differences between them and their significance.

(a) Different structures: the difference between "knowledge" and "desire"

One of the reasons for the dichotomy between intentional infringement and negligent infringement is that the internal structure of intentional infringement and negligent infringement is different. As far as internal structure is concerned, intention and negligence can be distinguished from "knowing" and "desire". The actor intentionally "knows", "foresees" or "believes" that the damage result or danger will or will basically happen; And "desire", "acquiescence" or "acceptance" of the result. As Medicus once pointed out, intentional means knowing and hoping that a state of affairs is decisive according to law. [2] The definition of 150 in common law is similar. In (general) negligence, when it is a subjective psychological state, it means that the actor has no knowledge of the damage result or danger, and does not want it to happen. This structural difference is the most basic and important difference between the two; At the same time, it also forms the basis of other important differences.

What is worth mentioning is gross negligence. The author thinks that the gross negligence is: the actor realized the possibility of damage or danger (not necessarily), or deliberately did not understand it; At the same time, actors don't want the result to happen. From this, we can see why gross negligence is often treated as intentional in law, because it is the same as intentional in cognitive factors, while civil law pays more attention to the prevention of misconduct (rather than the punishment of will) (for the definition and nature of gross negligence, see Ye: the construction of gross negligence theory, published in Law Research, No.6, 2009, p. 77 and below). )。

(b) Different in nature: subjective fault and objective fault.

In the context of tort law, negligence tends to be so-called "objectification" The so-called objectification of negligence refers to the concept definition, not just the judgment standard, which equates negligence with an act that violates the legal obligation or the duty of care, thus deviating from the standard of general rational person (tort). One of the main meanings of negligence in anglo-American law refers to this "form of negligence infringement", not the negligence of subjective mentality. In addition, French law has basically embarked on the road of objectification of negligence.

This tendency of objectification of fault is often called "objectification of fault", and the corresponding word is "objective fault" relative to "subjective fault" (for a representative discussion, see Zhang Min 'an's Research on Fault Tort Liability System (China University of Political Science and Law Press, 2002 edition). )。 However, it should always be noted that when it comes to objectification of fault, the fault here can only refer to "negligence" and cannot cover "intention". Because any radical supporter of "fault objectivism" can't define intention as "violation of duty of care". In judging standards, negligence has the standard of a general rational person, and it is not intentional and cannot be. In the final analysis, the difference between subjective and objective comes from the difference of their basic structure.

Different characteristics: the difference between avoidability and preventability.

Because intentional infringement and negligent infringement are different in structure and nature, the prevention and avoidance of behavior and its consequences are completely different. In negligence infringement, there are indeed some cases where increasing attention and strengthening preventive measures can effectively reduce accidents; However, it must be admitted that negligence infringement caused by natural dullness, unresponsiveness, or carelessness, impatience, stupidity, etc. cannot be truly suppressed through acquired efforts. It is in this sense that the occurrence of this kind of infringement is indeed a "destiny takes a hand's tragedy". In addition, from the perspective of economic analysis, improving preventive measures also involves the question of whether the cost expenditure is efficient and worthwhile. In short, the prevention and avoidance of negligent infringement is limited.

But intentional infringement can be said to be completely different. Intentional infringement is a "planned" behavior. There are both cognitive factors and will factors. Except for a few intentional torts caused by "irresistible impulse", whether intentional torts occur depends entirely on the actor. Therefore, in a purely technical sense, the inevitability and prevention of intentional infringement are very high. The difference between the avoidability and preventability of this negligence infringement also provides a theoretical basis for the design difference between the two relief systems.

(d) Differences in responsibilities: the obvious moral censure and the gradual development of moral irrelevance

"Do no harm to others" is "the minimum natural law". In tort law, the moral value and the idea of fairness and justice contained in this golden rule are the primary value goals, and although effectiveness or efficiency is also one of the value goals of tort law, "it must be sought within the framework of moral justice; Therefore, we must ask, and first of all, what kind of goal is morally desirable and legal when collecting tort liability. "

Negligent infringement, due to more and more objective tendency, its moral responsibility is getting weaker and weaker. As long as a person does not reach the attention level of ordinary rational people, even if he is born impatient, clumsy or slow-witted, he will bear the liability for negligence tort. It is in this sense that Honnore said, "Although the nominal liability is fault liability, in fact the defendant bears strict liability". ? 4? Intentional infringement is different. When someone intends to cause harm to the person or property of others-even if he doesn't want to, as long as the plan contains this effect, it is to "exploit or exploit others" in the most straightforward way; Whether the actor's motivation is self-interest, revenge or resentment, or political purpose, the effect is that the reality and realization of the victim are fundamentally subject to the reality and realization of the actor. [5]244 In this case, intentional infringement obviously violated the above minimum moral precepts. This kind of anti-morality is deeply reflected in the cognition and will of the doer: the cognition of "evil" is the basis, and the pursuit or connivance of "evil" in the will is the basis.