Abstract
In addition to the existence of harm, causation and fault (in the case of subjective liability), illegality is considered by most legal theorists to be a basic precondition for the occurrence of an obligation to compensate for damage. The Czech tort system was built on the same basis, which understood the element of illegality as a necessary objective condition for the occurrence of liability.
However, not all European national legislation treats this presumption in the same way; there are also those that do not require the presumption of illegality as a separate category to give rise to liability (France, Italy). With regard to the recodification efforts of the Czech legislator, which significantly affected the civil tort, it is now necessary to monitor these legislative tendencies, their doctrinal reflections and possible case law interpretations, to what extent there are opinions aimed at identifying the presumption of illegality with fault, resp. to erase their fundamental difference.
Relying on the definition of presumptions of negligence, various opinions emerge as to how to understand fault, resp. negligence and what standard of assessment (purely objective, differentiated objective, subjectivized and purely subjective) is to be applied to it.