The Constitutive Theory Of The Guardian’s Liability

The Article32of Tort Liability Law of People’s Republic of China (hereinafterreferred to as “Tort Liability Law”) enacted in2009comes from the rule of theguardian’s liability on the damage caused by the act of the person under guardianship.The provision provides a specific guidance for the identification of guardian. For thechanges of legal concept and the difference between domestic law and foreign law,the disputes of some related problems of guardian’s liability come into being in theacademia. These disputes are old-aged and non-uniform, which causes the chaoticsituation in the comprehension and the application of the provision. To clarify thesedisputes clearly and provide clear thought for theory and judicial practice, this articlewill analyze the related issues on the basic of our current situation of law and nationalconditions, and referring to condition and the development tendency of civil lawcountry.There are two different thoughts on the character of guardian’s liability inacademia: self liability and vicarious liability. The scholars insisting the idea of selfliability hold that guardian’s liability is on the basis of the violation of theguardianship duty, so they should assume liability for inappropriate performing theirobligation. The ones insisting the vicarious liability hold that guardian’s liability is onthe basis of the special relationship between guardians and the person underguardianship but not the violation of guardian’s liability. They think it is theseparation of the subject of act and the subject of liability. For the capacity for tortliability is not acknowledged in China, the problem on liability of the person underguardianship is nonexistent. The guardian’s liability in tort law is the vicariousliability on the analysis of current law. First, the guardianship system in Chinese lawis broader from the perspective of our legal system, which lets the subject ofassuming responsibility in the widest scope. Second, from the perspective of thetheory of tort law, guardian’ responsibility embodies the tort law’s value judgmentthat is the protection of victims.Referring to the doctrine of liability fixation of the guardian’s responsibility,along the Europe’s history, it changed from the principle of guardian’s no-faultliability in Roman Law to the principle of fault liability in renaissance, and now itturns into the principle of the presumption of fault. The evolution process is alongwith the development of the social economy, the improvement of the relatedsupporting systems and the alternation of people’s ideal and faith, which embodiesthe change of the epoch topic and also provides reference for the establishment ourrules. While, in the period of Chinese legal genealogy`in our history, the firmness of family networks effects so burning that the idea that the guardian is responsible forthe family continues until now, and influence the guidance and evaluation of relatedacts. For the high value on the bloodline in China and the special relationshipbetween guardian and the person under guardianship, there is no obstacle to let theguardian assume the no-fault liability, which will be more accepted no matter it isfrom the legal rules, the jurisprudential analysis, the realistic demands or thepsychological expectation.The establishment of elements of the guardian’s responsibility provides thespecific foundation for solving the practical problem in the judicial trial. Though theperson under guardianship is the person with no or limited disposing capacity, theguardian’s assuming the liability must be on the basis of the accountability of his(her)act, or it will be unjust. First, the person under guardianship has implementedmalfeasance. Second, there is causation between the malfeasance and the damagecaused by the malfeasance. Third, it is reasonable to pay more attention to the personunder guardian’s the illegality of act but not his (her) subjective fault, for the illegalityof act is the basis of the imputation. In the juridical practice, the assuming of deresponsibility will be decided by defining the guardianship directly. There are legalcustody, designated guardianship and entrusted custody so we should definedepending on the different circumstances.