The Study Of Children As Victims Applying"Contributory Negligence" System

From the Article131of "Civil Law" which provides " contributory negligence " system to the Article26of "Tort Liability Act",the provisions of our legislation has made some progress. But on the other hand, the " contributory negligence " system of legislation is not enough:" minor as victim " study as a separate part in many coutries, but our laws do not involve, so it can be said that there is need for research in China. Therefore, this topic can explore and improve our " contributory negligence " system from the perspective of" minor as victim ".This paper uses the comparative method, on the basis of the research of existing theory, legislation and case law in several coutries. It centres on two questions:" minor victim system can be uniformly applied to contributory negligence or not " and " The obligations of breaching by their legal representative can be attributed to a minor as victim or not" and examines the foreign law and theory to put forward some advice in our Legislative and judicial activities. This paper constitutes by five parts except introduction.The first part introduces the related concepts of " contributory negligence " system and then pointed out the difference among minor as victim, minor as infringe and adult victims, emphasizing the particularity of minor as victim and therefore clarifies the meaning of this paper.The second part investigates the first question "minor victim system can be uniformly applied to contributory negligence or not "from the perspective of comparative law. In this question, the main difference is the criteria of To have tort liability is a necessary condition or not". The coutries are divided to three parts. The third part investigates the first question from the perspective of theory on the negligence criteria of" minor as victim". In this part, first of all, it defines victim " negligence " in nature and thus infer to the victim’s fault criterion. The conclusion is that the minor victim’s negligence criteria should be reasonable person standard in the same age group.The fourth part investigates the second question " The obligations of breaching by their legal representative can be attributed to a minor as victim or not." There are three positions on comparative law:The first one is the use of " no identification" rule, the second one is the use of" treated as the same " rule, the third one is the conditional use " as the same " rule. Theorists also appeared three perspectives. After analyzing them, it should take the " no identification" rule ultimately.The fifth part examines the main issues of the legislative and judicial situation in China, combined with the above conclusions and make some suggestions.