Guardian’s Litigation Status In Minor’s Tort Case

At present, the phenomenon of minor infringement is widespread. According to the Tort liability law article 32, victim can through a litigation to get relief. In trial activities, all of the court are clear with 32 as the referee basis. But in the judgment, guardian’s litigation status and responsibility is different. Through generalize, there have three main case: 1.Minor alone as the defendant, but judgment guardian bear the liability for compensation; 2. Guardian and minor as the codefendant, judgment them bear jointly and severally liable;3. Guardian alone as a defendant, Judgment guardian responsibility. Different courts have different judgment, great impact the unity and authority of the judicial activities. To solve the problem, the Supreme Court made a Judicial interpretation. The judicial interpretation about civil procedure law’s article 67 has provisioned: guardian and minor as the codefendant. Although the judicial interpretation can unified approach of the District Court, but violation the Substantive law’s provisions, will Lead to a new controversy in the future.From the procedural law analysis, such cases are litigation of payment, object of action is damages claim. According to the qualification for the proper part, the person who liable for damages is proper defendant. The judicial interpretation provisions “Minor and guardian as codefendant” means they need to bear the liability to the victim. But through analyzing the "Tort Liability Act," Article 32 and other laws, we can’t come to this conclusion: Minor need to bear the liability to the victim. In contrast, because minor don’t have responsibility ability, subjective fault can not be formed, do not need to assume the tort liability. Be further analyzing the "Tort Liability Act," Article 32, the Paragraph 1 adjust the external relations,that the compensation relationship between the guardian and the victim; Paragraph 2 adjust internal relations, that the damage to share relationship between the guardian and the minor. The premise of paragraph 2 is paragraph 1, just after the guardian tort liability to the victim, the minor need tort fair Liability to the guardian.Based on the above analysis,when minor infringement, victims only claim compensation to guardian, guardian is the only compensation obligation subject, also the only defendant. Because minor has a interested relationship for the case result, he should be the third party without independent claims, not the Co-defendant which the judicial interpretation has provisioned. Face the conflicts between substantive law and judicial interpretation, there are two ways to resolve: firs, make new judicial interpretation, provision guardian as the only defendant. Second, modify "Tort Liability Act", provision minor need to bear the liability to the victim.