| The theory of recklessness in traditional civil law system is simple and crude in content and fragmented in system. Lacking of explanatory power inherently, it can not provide clear criterion and methods for judicial adjudication and is unable to explain why recklessness amounts to intention. The theory of fault in criminal law has always been influential to civil law, so that the recklessness theory in civil law can well absorb the essence of related theory in criminal law. Firstly, recklessness should be a kind of conscious negligence, that is, the actor has knowledge about the high probability of the damage occurred and the non-legitimacy of his act. Secondly, the actor should de facto create a huge risk, that is, the probability that the damage would occure is very high and the damage occurred is huge after the realization of risk. Such fault is a subjective fault which can be avoided to a great extent by the actor and a kind of fault under strong moral condemnation. It falls into an independent type of fault between intention and ordinary negligence and is much closer to intention. The judgment of “knowledge” should stick to the classification of “knowing” and “having reason to know”, and judicial inference should be effectively applied in typical situations and legal presumption applied where law expressly provides. The determination of the seriousness of risk refers to the comprehend judgment of the probability and extent of damage, and the cost of prevention should also be taken into account. The legal effect of recklessness is in principle the same as that of intentional tort with also some exceptions. The legal effect of recklessness mainly includes its influence on the establishment of liability for damage, on the application of the rule of contributory negligence, on the presence or absence of the right of recourse when somebody is held accountable for other person’s behavior, on the liability for damage of depository without charge or donors, on the amount of compensation for mental losses, and so on. Additionally, recklessness is the manifestation of maliciousness and thus constitutes a typical circumstance where the punitive damages are awarded. |
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