On Responsibility For Adults Who Lack Of Consciousness Ability

The adults who lack of consciousness ability mentioned in this thesis refer to the adults whose ability of cognition,emotion,behavior and other wills are lower than normal standard resulted in by factors such as age or illness and so on,including the mentally disordered,the elderly with a dementia,intellectual disabilities,etc.Although the adults who lack of consciousness ability have consciousness deficiency like the minors,the adults who lack of consciousness ability have particularities in terms of their responsibility ability,guardianship relation,property status,etc.These characteristics directly affect the tort responsibility of the adults who lack of consciousness ability.Therefore,it is necessary to specially study the tort liability issues caused by the adults who lack of consciousness ability.This thesis discusses around the tort liability caused by the adults who lack of consciousness ability,and on the basis of the basic theory of tort law,tries to analyze the basis of liability for tort caused by the adults who lack of consciousness ability.Meanwhile,it learns from foreign legislative experience,and through combining with the considerations of economics,insurance,social policy and so on,perfects the responsibility system of the adults who lack of consciousness ability,and then looks for a new path to disperse the tort damage caused by the adults who lack of consciousness ability and reduces the occurrence of tort damage.Based on the above research ideas,this thesis can be divided into five chapters:The first part is the research on the system of tort liability caused by the adults who lack of consciousness ability,including the first,second and third chapters.The first chapter discusses the foundation of tort liability undertaken by the adults who lack of consciousness ability.Under the theory of corrective justice,the basis that the adults who lack of consciousness ability undertake liability for tort is the existence of free will.If their action is not out of control of free will,their action will have no moral accountability,and the doers should not be responsible for the damage because they have no fault.The adults who lack of consciousness ability don't have full free will due to disease,age,and other special factors,and whether they should bear tort liability should be based on whether they have corresponding capacity.Hence this ability is called capacity for tort liability.If the adults who lack of consciousness ability have corresponding capacity for tort liability,they should bear their own responsibility for the damage caused by their fault,otherwise,they should not be liable for it.At this point,the guardian should take the responsibility.This field has different explanations for the accountability causes of the guardianship liability of the adults who lack of consciousness ability.Considering from the perspective of the value function of the human rights protection and tort law and even economics,the guardian responsibility of the adults who lack of consciousness ability should take the guardian's violation for regulatory obligations as the accountability cause.Therefore,the guardian responsibility of the adults who lack of consciousness ability should undertake the infringement responsibility for the damage caused by the violation of supervising obligations.Chapter two and Chapter three deeply study their own responsibility and guardian's responsibility of the adults who lack of consciousness ability.First of all,the second chapter summarizes the change of free will theory in from the perspective of legal history,and illustrates the status of capacity for tort liability whose premise is free will theory in the tort liability bearing.The Tort Law of our country hasn't acknowledged the concept of capacity for tort liability,but classified the qualification whether the capacity for civil conduct has fault responsibility for the adults who lack of consciousness ability.However,although capacity for civil conduct and capacity for tort liability are all based on free will,their function and judging standard are different,it is imperative for the tort law of our country to adopt the concept of capacity for tort liability.In addition,because the adults who lack of consciousness ability have a great inter-individual difference,it is more appropriate to adopt the "case identification mode" in the determination of capacity for duties.The third chapter conducts the study by centering on the guardian responsibility of the adults who lack of consciousness ability.First of all,the principle of attribution of the guardian responsibility of the adults who lack of consciousness ability is discussed,and starting from the attribution reason and combining with foreign legislative cases,it is thought that the guardian responsibility bearing of the adults who lack of consciousness ability in our country should adhere to taking the guardian's violation of supervising obligations as the guardian's attribution reason,and the fault principle should be adopted to improve the guardian responsibility of the adults who lack of consciousness ability in the Tort Law.In order to balance the information asymmetry between the victim and the guardian,it is more appropriate to adopt the fault presumption method.Secondly,the type of guardian responsibility is analyzed,based on a deep discussion on the concept of vicarious liability and own responsibility,and combining with the attribution reason and attribution principle of the guardianship of the adults who lack of consciousness ability,it draws the conclusion that the essence of the responsibility of the adults who lack of consciousness ability should be their own responsibility.In the end,it discusses the division of responsibility between the guardians and other responsibility subjects of the adults who lack of consciousness ability under the condition of most people's infringement.The fourth chapter is the research on the sharing method of infringement damage in the tort law system,and it takes the equitable liability as the way to share the damages.Equitable liability is the embodiment of the fairness principle in the tort law,and it reflects distributive justice.In foreign legislative cases,when the victims cannot get a compensation from the guardian,according to economic conditions between the victim and offender as well as special circumstances,the court will judge the offender bear all or part of the damages.The second term of article 32 of the Tort Law of our country also stipulated the fair responsibility,but there is a debate for this term's applicable fields.Through the analysis,it finds out that regarding the offender's fair liability as the supplement that the guardian's not bearing guardian responsibility is more in line with the purpose of fair liability.However,in the framework of article 32 of the Tort Law,regardless of what kind of explanation to stipulation 2,the premise that the guardian bears no-fault liability cannot be ignored.The result is the part of fair liability which can be divided is just the responsibility sharing between the guardian and the adults who lack of consciousness ability,but it could no nothing to the damage sharing between the offender and the victim.In order to solve this problem,we should return to the attribution of guardianship.Only under the premise that the guardian bears the fault responsibility,the sharing of fair responsibilities is truly fair.The fifth chapter discusses the new path of infringement damage of adults who lack of consciousness ability from the perspective of insurance.Under China's current economic condition and social background,it is necessary and reasonable to establish the guardianship insurance of adults who lack of consciousness ability.It is of great significance to reduce the accident cost of the infringement of the adults who lack of consciousness-ability.Although there is no guardianship liability insurance of adults who lack of consciousness ability in China,there has been a liability insurance system for the mentally disturbed in many places.However,the current guardian liability insurance is the policy-based insurance,and although the insurance can reduce the secondary cost of accidents,it has a deterrent effect of weakening the Tort Law and a moral risk of increasing the primary cost of accidents.Based on the comparison between commercial insurance mode and policy-related insurance mode,choosing the insurance system mode which insures the adults who lack of consciousness ability and specifically stipulates insurance coverage and right of recourse is more advantageous to realize the purpose of reducing infringement damage of the adults who lack of consciousness ability.The last part mainly discusses,when there is neither guardian nor insurance,the concrete remedies for the damage caused by the adults who lack of consciousness ability.Adult guardianship system has experienced the change of national public power intervention from the private law attribute of modern "famililism" to contemporary"nationalism".If it is said that the aging population is the external driving factor of the change,then this thesis argues that the development of the concept of human rights is the internal driving factor of the change in adult guardianship system.The implementation of national intervention in the field of adult guardianship is mainly reflected in two aspects:first of all,the modern adult guardianship system emphasizes to regard respecting self-decision as the concept of system design;Secondly,it is to build the guardianship and monitoring system.The former aims to implement the protection of human rights,while the latter aims to supervise the good performance of guardians,so as to protect their personal property and other rights and interests.The provisions of the guardian responsibility in The general civil law provides a path for the country to bear guardianship liability,but the path is too narrow:it is only limited to the situation that the civil administration branches are the guardians of the adults who lack of consciousness ability,and damage caused by the adults.This thesis argues that,when there is neither guardian nor insurance,damages caused by the adults who lack of consciousness ability,the basis that the country bears the liability is that the country has the obligations to guarantee citizens,human rights and interests and the tort law focuses on protecting the victims,and the concrete remedies can be embodied in the form of national fund assistance,but the applicable conditions should be strictly limited.