Studies On The Delictual Capacity

Delictual capacity is not the commonly capacity for bear tort liability,but the legal qualification to form fault and undertakes fault liability.So,the nature of delictual capacity is the capacity of fault,which operates in the principle of fault.Delictual capacity is based on recognition ability,which is a mental capacity of natural person.The connotation of recognition ability is recognizes and discerns the conduct's risk.If a conductor loses recognition ability,we cannot blame him/her for fault and impose tort liability on him/her.Because a person who cannot discriminate the basic good and evil,as well as cannot select or control him/her own conduct.So,delictual capacity as the precondition of fault's judgment,and which is filled with ethical color.The value of delictual capacity is to protect the conductor who lacks recognition ability,in order to make him/her avoid taking on severe tort liability,as well as give rationalized demonstration on judgment and undertaking of tort liability.On the basis of legal interests' equitable protection,the regulations of guardian's responsibility and equitable liability have been constructed in tort law as the complementary measures of capacity for tort liability,in order to protect the victims who suffered infraction from the person who don't have delictual capacity.So,the opinion of legal system of delictual capacity contradicts the relief function of tort law and against protect victims would be untenable.Legal system of delictual capacity not only plays an important role in the concrete tort proceedings for protection and rationalized demonstration,but also it can impenetrate the internal system of fault liability,such as it is closely correlate with the judgment of fault,guardian's responsibility,joint tort,contributory negligence,equitable liability,and so on.Delictual capacity can supply uniform theoretical basis and justification to the above items.The implication of objective negligence is to use objective measures on judging negligence,but this viewpoint cannot change the nature of negligence.As the precondition of fault's judgment,delictual capacity has its unique value and necessity,and this value and necessity cannot be disaffirmed by objectification of negligence.Because fault liability is different from risk liability or result liability,we cannot impose such liability on a person only based on objective negligence;moreover,we should in consideration of the age and recognition ability of conductor.Today,the tendency of negligence's objectification becomes obviously,the mainly reason why fault liability is distinct from risk liability is that,legal system of delictual capacity plays a crucial role.Delictual capacity supplements the vacuum of ethic on account of the highly objectification of negligence to some extent,as well it can correlate fault liability with subjective ability of natural person in some degrees.We cannot confuse legal system of capacity for rights and legal system of delictual capacity,both systems have its own connotation and function,which are formed in historically.The mainly function of capacity for rights is to endow abstract subject qualification,so as to establish equality of personality.Legal system of delictual capacity as an important system in positive law,its aim is to serve fault imputation.So,capacity for tort liability is the implementation of capacity for rights.The value and function of capacity for tort liability is objective,and this value and function is not a scholar's personal opinion or a nation's legislative selection,but the achievement of whole human society's life experience,value judgment and culture.So,such capacity is deeply roots in the relevant system,theory,as well as practice of two legal families' fault tort law.If we deny the exist of delictual capacity or propose weaken its value,not only the judgment and undertaking of tort liability may be lose rationality,and serious social problem and ethical crisis can be induced,but also result in other concrete regulations lack of theoretical basis,such regulations including guardian's responsibility,joint tort,contributory negligence,as well as equitable liability.As a consequence,the above regulations become accumulation of legal norms purely and have no logical relationship internally.The criterion of judgment for delictual capacity in comparative law is different.Article 133 of "General Principles of the Civil Law of PRC." and article 32 of "Tort Liability Law of PRC." are influenced by the theory of widely capacity for civil conduct of the Soviet Union.In the model of the Soviet Union,capacity for civil conduct is the criterion of judgment for delictual capacity,and the latter is included by the former.Although such model has the advantage of convenience,the basic distinction of capacity for civil conduct and delictual capacity can be blurred.In order to overcome the negative effect of capacity for civil conduct's criterion in practice,article 33 of "Tort Liability Law of PRC." adopted the criterion of recognition ability,which only applicable to the adult man/woman who loses recognition ability temporarily.Regarding the comparative law and practice,we should adopt the combination criterion of age and recognition ability as the criterion of judgment for delictual capacity in the future civil code of our country.