| 摘要: |
| 侵权行为用语在近代中国的引入与确立历经以下阶段： 19世纪在华外国人水平和方式不一的少量译述，展现了关于侵权行为的早期汉语表达，但未能形成恰当对译词并产生影响；20世纪初，移植于日本的“不法行为”成为清末表述侵权行为的一般用语；《大清民律草案》首次采用“侵权行为”一词，该词在民国得到沿用，并于民国北京政府时期成为通称。近代中国采用“侵权行为”这一名称，缘于继受了日本学者依其本国规范形成的侵权行为概念，但侵权行为规范主要取法德国，因此法律名称的自身意义与制度意义不能契合，“侵权行为”一词的合理性也受到一些民国学者质疑。尽管如此，近代中国采用“侵权行为”仍属相对合理的选择。 |
| 关键词: 早期译文、不法行为、侵权行为、权利 |
| DOI： |
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| A Brief Research on the Terms of Tort in Modern China |
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Wang Yamin
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| Abstract: |
| The introduction and the establishment of tort terms in modern China went through the following stages. In the 19th century, there were a few translations with different levels and ways by foreigners in China, which showed the early expressions of tort in Chinese, but they failed to find proper equivalents and exert an influence. At the beginning of the 20th century, the “unlawful act” transplanted from Japan became the general term to express tort in the late Qing Dynasty. The term “tort” was first used in The Draft of Qing Civil Code, which was inherited by the Republic of China and became a general term during the Period of the Beijing Government of the Republic of China. The adoption of “tort” as a legal term in modern China was affected by the Japanese scholars view of tort formed on the basis of the Japanese tort legislation, whereas the tort provisions were referred mainly to Germany. Therefore, the legal term and the legal system are different in their meanings, and the rationality of the term “tort” was also questioned by some scholars of the Republic of China. In spite of this, it is still a relatively reasonable choice for modern China to adopt the term “tort”. |
| Key words: Early Translations, Unlawful Act, Tort, Right |
