Research On The Guardians’ Liability

Since the Tort Law’s implementation, there existed much conflict. Guardians’liability problem when minors cause others damage attracted much attention, i.e., much attention has been paid to the understanding and the application of paragraph1and paragraph2of article32in Tort Law in theory and in practice. Differences mainly concentrated on imputative principle of Guardians’liability and the applicable relationship of paragraph1and paragraph2of article32. For imputative principle of Guardians’liability, there are two proposals in theory, which are theory of single imputative principle and hybrid imputative principle. For the applicable relationship of paragraph1and paragraph2of article32, here exists four theory at present, which are parallel relationship theory, general and exception relationship theory, principal and subordination theory and general and supplementary relationship theory. Scholars pay more attention to these problems, but there is no unified conclusion.On the other hand,there is not so fierce debate in the practice. For this two different practices, I try to start out from the scholars’views on the understanding and applicable relationship of paragraph1and paragraph2of article32in Tort Law, with using the system analysis method, comparative analysis method and empirical analysis method, to analysis the advantages and disadvantages of all kinds of theory and combine the specific conditions in practice, which in order to put forward my understanding to these two problems and do some contribution to our practical operation.This paper is divided into four parts, the first part is to demonstrate my supporting theory in the way of analyzing the debate on the imputation principle system of Guardians’ liability in our country’s Tort Law, in order to lay the foundation for the below discuss; the second part is to state the scholars’theoretical disagreement on understanding of paragraph1of article32in Tort Law and analyze their successes and deficiencies, in order to put forward my own understanding in the view of interpretative theory of civil law; The third part is to point out the different understandings of paragraph2of article32in Tort Law and do some analysis;the fourth part is to combine the two previous parts to elaborate the applicable relationship between paragraph1and paragraph2of article32in Tort Law and to illustrate Scholars’s theory, then demonstrate my own understanding; at last, I conclude that we should adopt fault liability principle in imputative principle in Guardians’liability, with combination of social insurance system to relieve the victim; on the other hand, we ought to distinguish the substantive and procedure. The paragraph1is to maintain Guardians’liability, and the paragraph2is to solve the payment of compensation, which is the illustration of the source of compensation. Therefore, both the two paragraphs have no conflict, which are content of judgment and implement stage. In a word,it is a kind of sequential relationship.