Research On The Assumption Of Civil Liability Caused By Minor’s Harmful Behavior

Capacity of civil liability is aimed to protect the one who are lack of recognitioncapacity. It is neither fault, nor an element of tort liability, it is the premise offault.Capacity of civil liability can maintain the justice of tort law and show the ethicsof tort law. The standard on the capacity of civil liability is recognition capacity, thestandard of German’s combination abstract doctrine with concrete doctrine is superior.Capacity of civil liability is the key section to minor whose lever of mind is lowerthan adult. During our judicial practice, it is tend to judge a minor to undertakeliability for the minor has properties, rather than investigate the minor’s subjectivepsychology, such method makes tort law lost its justice. The tort law does not makesubstantial modify on the minor’s liability, more and more scholars make effort toreexplain the legislation that minor’s liability is equitable liability. The judgment ofcapacity of civil liability is a problem of fact, even if the law does not regulatecapacity of civil liability, it is not the disorder to judge a minor’s capacity of civilliability， in case of disputes, make clear of capacity of civil liability is necessary.Guardian and the minor are independent,the reason why the guardian undertakeliability when their children bring damage to others is that their harmful behaviorsbreach their duty as guardian, the nature of their liability is liability for their ownfault. The imputation principles of guardian’s liability are the principle of fault, theprinciple of presumption of fault, strict liability and so on.Guardian’s liability is relative to minor’s liability, there are two main kinds of legislations,namely,supplementary liability and joint liability. During our judicial practice,guardian’sliability is the supplement to minor’s liability,however, new explain thinks guardian’sliability is the liability for their own fault. We’d better adopt the legislation of jointliability.The paper focuses on the two main questions of assumption of civil liabilitycaused by minor’s harmful behavior——minor’s liability and guardian’s liability.Based on the research of scholars,the paper uses methods of comparative study,historical analysis, normative analysis, analysis of the literature and so on. In theintroductory section of the paper,questions are put out by the contradictory judgmentsand the confusions of the theory. In the end,the paper makes a summary and puts outsome views on the future’s research. The main sections of the paper are chapterone,chapter two,chapter three:The first chapter of the paper is about minor’s liability. The main content is theresearch on the capacity of the civil liability, including the nature of it, the standard ofit and the significance of it to minor’s liability. In this section, the constitutiverequirements of minor’s liability and the matters should be paid attention when minorfulfills the responsibility are also referred.The second chapter of the paper is about guardian’s liability. The main contentsof this section includes the nature of guardian’s liability,the assumption principle ofguardian’s liability, constitutive requirements of guardian’s liability and thedistribution of the liability between minor and guardian. In this section,the assumptionof liability under the circumstance of entrusted custody is also referred.The third chapter of the paper is about the explain of the legislation on theassumption of civil liability caused by minor’s harmful behavior,including the explainexists in our judicial practice,the new explain after the promulgation of tort law andthe explain of the paper. In this chapter, advice on the future legislation is also put out.