我国民法典制定在即,且将侵权行为法独立成篇,对于侵权行为须具备几个构成要件的问题争论颇多,其中分歧最大的则是违法性是否应该与过错相区别而作为侵权责任的独立构成要件。本文通过对违法性与过错中几个有争议的问题进行分析,梳理违法性与过错之间的关系,得出观点——违法性应该作为侵权责任的独立构成要件存在。 At the very moment when China’s civil code is enacted, the law of tort will be taken as an independent piece. There are many controversies over the several elements that constitute an infringement act. The most important of these disagreements are whether the illegality should be distinguished from the fault as the independent tort liability Elements. By analyzing several controversial issues in illegality and fault and combing the relationship between illegality and fault, this paper draws a conclusion that illegality should exist as an independent component of tort liability.