Research On Guardian 's Tortious Liability

As the issues of civil liability of guardian involving the tort damages legal relation and guardianship relationship, the liability of guardian is especial and complicated, and the affects of family and even the society as a whole is lager, it has great significance for the stability and development of the society, so the guardian’s tort liability issue is controversial. In practice, it is very difficult for the guardian to prove himself has done the duties also it is unreasonable to guardian to assume the tort liability of person under guardianship. When it happened the cases of the person under guardianship encroach on others, the guardian often assume the tort liability. Although the "Tort Liability Law" has been improved the provisions on the liability of guardian in "General Provisions of Civil Law", but there is a big difference with the relevant provisions of the civil law countries and common law countries, this need we review the provisions of the rationality of guardian’s tort liability in china. Therefore, a comprehensive analysis of the nature of liability of guardian, the principle of imputation and the realization and implement has a far-reaching significance.This article will focus on the above problems. Through research methods of the literature analysis, historical analysis, value analysis and case analysis, doing the collation and analysis of the domestic and foreign theory point of view, then we can get the definition of the nature of liability of guardian, the principle of imputation and the realization and implement.As a theoretical basis for the system construction by measuring the benefit of the victim, the guardian and the person under guardianship. Also we should to respect the social trend, should keep us focus on theory and reality, we can put forward the concrete suggestion. In this paper, the text is divided into four parts. In Chapter One, using a case as the guide, we can find the issues related to current law the nature of liability of guardian, the principle of imputation and the realization and implement. In Chapter Two, we discusses the nature of the liability of guardian. Through the comparative analysis of the relevant theory of the nature liability of guardian, we can determine its nature. In the value level, I research the balancing of interest of the guardian’s tort liability to find the balance between the freedom of the guardian, the development of the person under guardianship and the protection of the rights of the victim. In Chapter Three, it discusses the key of civil liability of guardian. It is the principle of imputation. This chapter expounds the basic theory of the principle of imputation, and the effects of various theories, we can put forward the future direction of development about the principle of imputation. For the sake of the complete system, it inspects the constitutive requirements, the reasons for deraignment. In Chapter Four, the analysis of the guardian’s responsibility related tort liability rules, whether the guardian after being found responsible for the ability of their ability to appropriate their own responsibility. By a comparative law, we can research the realization and implement of liability of guardian. And from the legislative point of view, researching the feasible suggestions.The conclusion of this article views and opinions can be resulted. Based on the balance of the interests, the study of guardian tort liability are summarized by researching:the nature of the guardian of tort liability law should be identified by the responsibility of the behavior of others, but the direction of future legislation should be the responsibility of themselves; the imputation principle of the guardian should be the principle of the liability without fault, in the future the tort liability of guardians should be the principle of fault liability by legislation; if the person under guardian who don’t have the liability to tort then bored by the guardian. It must be beard the corresponding tort liability under the influence of bearing responsibilities of the person under guardian. It is the mode of individual responsibility and joint several liability and compensation liability.