As the saying goes in China, “you may know his face, but not his heart”. For unless you are a mind-reader, there is no way you can know other people’s psychological traits. However, in real life, one quite often needs to follow psychological traits to their concrete conclusions, especially in the field of law.
Human rights is a cornerstone of modern societies; the right of existence, right of freedom, etc. Governments place heavy emphasis on the protection of legitimate rights and fighting their infringement.
To protect legitimate rights, it is crucial to properly determine fault, which can be divided into intention and negligence. In the Theory of Roman Law there is a story of the wealthy Lucius Veratius who had an eccentric addiction; he found great joy in slapping other people. Back then, the statutory fine for slapping people was 25 coins, no matter whether the slap was intentional or negligent. Veratius would stroll on the street and slap whoever was in front of him; his servant behind would immediately hand over the statutory fine of 25 coins to the victim.
It is clearly not fair for the wealthy person who intentionally slaps and humiliates others to pay a fine that is same for the ones who negligently slaps others. Hence from the perspective of protection of rights, the necessary distinction between intention and negligence.
Knowledge and Desire
Intention is one mentality with initiative, describing an act committed by a person who clearly knows that such will entail harmful consequences or damage to others and who deliberately wishes or allows said to take place. Negligence, on the other hand refers to an act committed by a person who should have foreseen that such could possibly entail harmful consequences to others but who fails to do so. For example, what Veratius did is intentional, because he knowingly wishes to slap others.
Avoidance and Prevention
As intention and negligence have vast differences in terms of composition and their properties, they are avoidable and preventable to distinctive degrees. Even though negligence is a subjective state of mind, it gradually presents more and more objectivity features, in mainly describing an act that violates legal obligation or duty of care that deviates from the standards of a rational person. However, the cause of the violation, notwithstanding a psychological condition, can often be objective to the human mind. Intention is entirely another case. It is an act of meticulous planning; one does not only need to know but also possess a strong wilful orientation. Hence, this kind of act can be altogether avoidable and preventable.
Legislative Status in China
The issuance of the Tort Law of People’s Republic of China (referred as Tort Law) shows significant progress in China’s private law. Unfortunately, however, regarding clauses referring to intention and negligence, there is certainly room for improvement, as the Tort Law does not differentiate the intention and negligence. Through the entire law, it does not mention the intention of the infringer while there are only a few mentions regarding the intention of the victim. With negligence it is the same case, which means the intention and negligence of the infringer have been completely neglected.
As such, the Tort Law fails to put sufficient emphasis on the compensation regime for intentional infringement, because intention plays a vital part in determining scope of damage and the bearer of the relevant expenses such as legal fee and other litigation costs. Moreover, punitive damages in the Tort Law only apply to specific infringements, which does not fully realise the legislative spirit that is to deter or prevent infringers when normal clauses fail to do so.
As a result, it remains important for you to pay attention to other people’s right to avoid infringement due to the same consequences, regardless the status of your mind.
This article is intended solely for informational purposes and does not constitute legal advice. Although the information in this article was obtained from reliable official sources, no guarantee is made with regard to its accuracy and completeness. For more information please visit dandreapartners.com or WeChat: dandreapartners.