Interpretive Research On The Article32in Tort Law

The32article in tort law stipulates guardian’s liability when the person under guardianship infringes others which inherits the article133in general principles of civil law. The article32is also called the article of guardian’s liability. While the enactment of article32couldn’t terminate the discussion on theguardian’s liability. And the discussion is mainly on three parts: first, whetherthe person under guardianship is the liability subject, what’s the basis of the liability assuming if the person under guardianship is the liability subject. Second, how to identify the nature of guardian’s liability? Is it the liability for faultor the presumed fault liability? Or is is the self liability or he presumed fault liability? Third, what’s the relationship between the person under guardianship and the guardian when the person under guardianship who owns the assets infringes others?For the first problem, both he legislative branch and judicial branch holdthat the guardian is the only liability subject when the person under guardianship infringes others. While the forward sentence of article32item2stipulatesthe person under guardianship’s assets should be payed the loss if he(she) has. Obviously, the viewpoint of legislative branch is paradox. And the scholarspropose two solutions to remit the contradiction. First, the forward sentence ofarticle32item2stipulates that the person under guardianship and victim should assume the equitable liability. And second, it stipulates that the person under guardianship and the guardian should assume the equitable liability. But neither of two solutions could reverse the guardian is the liability subject.For the second problem, the dominant ideology holds that the guardian’s liability is the vicarious liability and no-fault liability. When discussing the composition of liability of guardian’s liability, it is generally hold that the basis ofliability assuming is the violation of guardian duty which is contradictory to the essence of the vicarious liability. At the mean time, there are so many frauds on the viewpoint that guardian’s liability is the no-fault liability. For the third problem, the scientific viewpoints are various. Some hold that the person under guardianship and the guardian should assume the joint andseveral liability. Some hold that the person under guardianship and the guardian should assume the equitable liability. And some hold that the person underguardianship and the guardian should assume the complementary liability. Thefirst viewpoint is the legislative subject which couldn’t be obtained from thewords. The last two viewpoints try to turn the external compensation relationship between the person under guardianship and victim into the the internal relationship between the person under guardianship and the guardian. While they are all short of comprehensiveness nature.The article hold that article32refers to the person under the guardian, the guardian and the victim after analyzing through semantic interpretation, comparative interpretation and systematic interpretation, etc. The article32is aboutthe relationship among the three parties and its legislative intent is to balancethe interest among them. Mutual relationship among them is the first step to interpret article32. The forward sentence of item1stipulates the relationship between the victim and the guardian. The guardian should assume the presumedliability. The basis of liability assuming is the violation of guardian duty andthe nature of it is the self liability and independent liability. The last part ofitem1owns the nature of equitable liability which stipulates “compensating,but reliving properly”, and it is the reverse side formulation to “non-compensating,but compensating properly”in the article24The forward sentence of item2stipulates the relationship between the person under guardianship and the victim. The person under the guardianship liability should adopt the presumed liability principle as article6, and it could refer to the capacity for civil conductcombining with specific cases. The forward part of article32item2could play its role on the liability assuming only when the person under guardianshipliability is tenable. The last part of item2plays the role of guiding article and item1is basis of the guardian assuming the complementary liability for damage. The guardian and the person under the guardianship are mutually independent on the liability composition and liability assuming.