英文犯罪和侵权的区分.pdfVIP

THE CRIME/TORT DISTINCTION: LEGAL DOCTRINE AND NORMATIVE PERSPECTIVES * Kenneth W. Simons This essay provides an overview of the crime/tort distinction. It first investigates some of the fundamental differences between criminal law and tort law in doctrine and legal structure. It then explores some important similarities and differences in normative perspectives between the two doctrinal fields. This typology should prove analytically useful for examining some of the specific issues at the borderline of crime and torts—such as the proper scope of punitive damage liability and the question whether criminal law as well as tort law should vary legal sanctions simply because of the fortuitous occurrence of harm. A. DIFFERENCES IN DOCTRINE AND STRUCTURE “In the beginning,” of course, crime and tort were not sharply distinguished. At early common law, a victim could pursue justice for the same wrongful act either through a forerunner of criminal 1 law or through a forerunner of tort law. But over time, criminal law and tort law have evolved to encompass a number of distinctive and contrasting features. The following nine features are especially salient. (1) The state prosecutes violations of criminal law. A victims consent is neither necessary nor sufficient for a prosecution to be brought. In tort law, by contrast, the victim decides whether to bring a tort claim and is free to choose not to do so.2 * Professor of Law, Associate Dean for Research, The Honorable Frank R. Kenison Distinguished Scholar in Law, Boston University School of Law. 1 David J.