“过错”、“不法”等概念都是“判断”或“评价”的结果,意在说明人是理性的,要对自由意志负责的抽象观念。实际上,“过错”需要依据违反特定义务的行为这一事实加以推断方能确定,与之有关的抗辩也可以用未违反特定义务,或对方违反了对他自己的注意义务等理由来进行。因而一定程度上,可以抛开“过错”概念,仅根据当事人是否负有和违反了注意义务来判断其应否承担责任,并根据损害的程度确定责任的大小。对因果关系的讨论,在一般侵权案件中,因事实简单直白故可以省略;而在无过错规则类型案件(随着“过错”概念的舍弃,这类案件也要更名)中,其具有更为广大的适用余地。当然,因果关系概念有必要进一步细化。 The concepts of “fault ” and “lawlessness ” are the result of “judgment ” or “evaluation ”, and are meant to illustrate abstract concepts that people are rational and responsible for free will. In fact, “fault” needs to be inferred on the basis of the fact that a particular obligation has been violated, and the defenses to which it relates can also be justified on the ground that they have not violated a particular obligation or that the other party has violated one’s own duty of care get on. Therefore, to a certain extent, we can put aside the concept of “fault” and judge whether the party should bear the responsibility only according to whether the party has or has neglected the duty of care. According to the extent of the damage, the responsibility should be determined. The discussion of causality can be omitted in the case of general infringement due to the fact that it is straightforward and straightforward. However, in cases of no-fault rules (with the abandonment of the concept of “fault”, such cases should also be renamed), Has a wider scope of application. Of course, the concept of causation needs to be further refined.