The Problems And Perfecting On The Application Of The Contributory Negligence Regulation

As an important institution in tort law, contributory negligence aims to preventthe injurers bearing the damages caused by the fault of the victims,which embodiesthe fairness doctrine of tort law. While, the special protection of the juveniles is alsoan important principle. Both the fairness doctrine and the special protection of thejuveniles should be taken into account when the juvenile was injured and he(she)also has the negligence on his(her) damage. According to the special condition whenthe juvenile was injured, there are some problems should be discussed when thecontributory negligence regulation should be applied through the study of the relatedlegislation,civil law theory and the application circumstances in practice of ournation.The problem of juveniles’ negligence offset ability should be discussed. Thecapability for ability of juveniles was widely denied by the related legislation,civillaw theory and the practice of our nation, and then juveniles’ negligence offsetability was also denied. While, the juveniles may bear too heavy load when they arewithout identification ability, which is very detrimental for them and also against thevalue goal of tort law. So the juveniles’ negligence offset ability should be admittedand based on if they have the identification ability. In order to work better, six yearsold should be the reference in our nation, absolutely the reference should be judgedwith the specific case. They shouldn’t bear the civil liability if they have nonegligence offset ability. When they have negligence offset ability, the preconditionof bearing civil ability is that they have the ordinary negligence or the grossnegligence. And I think it is too harsh for the juveniles to be judged havingnegligence when they are playing.The problem of the guardians’ negligence also should be discussed. When theguardian has negligence on the happening or the expansion stage of the juveniles’damage, civil law theory and the practice of our nation widely hold that thejuveniles’ damages claim should be decreased for their guardians’ negligence. While, it is breaching not only the aim of guardianship system but the principle on one’sown responsibility that juveniles bear the negligence of their guardians. Thejuveniles also have the damages claim right on their guardians as the guardiansbreaching the statutory guardianship duties which causing the damage of juveniles.The guardians should bear tort ability with the injurer and they should bear theability at the percentage of their causation of damage according to the severalliability stipulated in the article12of tort law.There is another problem should be discussed. When the juvenile was damagedto death, the guardian has the damages claim based on their own damage. While,whether the guardian need to bear the juvenile’s negligence if the juvenile hasnegligence on his(her) own damage and he(she) has lost the right to life. The answershould be certain that the guardian should bear the juvenile’s negligence whenhe(she) claims the damages.It is very important to protect juveniles specially for they are the future of ournation, while the contributory negligence institution also owns the important legalvalue. Though they will compromise mutually when they conflict in application,they will promote mutually and develop better if they could get better balance.