Liability Of Guardian In Minor’s Tort

As one of the important social groups, minors attract people’s attention all thetime. One of the reasons is that minors are young and lack of social experience so thatthey are vulnerable to be infringed, the other reason is that minors may infringe onothers easily because of their defective ability of cognition. When minors areinfringed, the constitution, the criminal law, the civil law and other laws andregulations in China can provide perfect legal protection for minors. Minors areprotected even when they infringe on other person. But when minors infringe on otherperson, how to compensate the infringed for the damages incurred and keep a balancebetween the compensation of the infringed and the protection of minors is a problem.There General Principles of Civil Law and Tort Liability Law are passed to solve theproblem, especially the latter. The relevant regulation of Tort Liability Law is theArt.32, named the rules of the liability of guardians. The regulation of the Art.32ofTort Liability Law is simple, but there are differences in how to interpret it. How tounderstand the Art.32of Tort Liability Law, involves theoretical discussions such asthe value measurement, system construction and so on, upon which the academia hascontroversial opinion. The differences in interpreting the Art.32of Tort Liability Lawmainly focus on the following questions: What is the doctrine of liability fixation ofthe liability of guardian? How to understand “where the guardian has performedguardianship responsibilities, his/her tort liability may be mitigated”? What is themeaning of “it is prior to pay compensation expenses from his property when minorshave property”? What is the nature of guardian’s liability? How to determine thedefendant in the minor infringement lawsuit? On this basis, when minors in schoolsand other education institutions infringe on other minors, how to distinguish liabilityof the guardians and the education institutions? When Minors are abetted or helped totort, how to tell liability of the guardians and the abettor or helper? To solve the aboveproblems, the most fundamental work is to read the Art.32of Tort Liability Lawcarefully. The reason of the disagreements in minors’ tort liability is that it involves threeparties: the minor, the guardian and the infringed, the liability is actually a balance ofinterests among the three parties. According to the theory of modern tort law, thevalue of the tort law is to make the infringed get compensation when they areinfringed, no matter where the infringement comes from. Therefore, thecompensation of the infringed is a priority; minors have limited capacity for civil actsso they are protected too. There is no doubt about this. Therefore, the traditional viewis that all the responsibility should be taken by the guardian since the infringed andthe minors are the objects of protection. But as the guardians of minors, should theirinterests not be considered? In this paper, we can see that in our country the liabilityof guardian is heavier than other countries through the analysis. Considering theconditions of our country, the guardians should also have the possibility to beconsidered as the object of protection. Therefore, in the interpretation of the Art.32ofTort Liability Law, it should also be considered to reduce the burden of the guardianaccordingly on the condition that the infringed are fully compensated.Based on the above analysis, this article starts from the relevant backgroundfactors of the Art.32of Tort Liability Law to interpret the article with severalinterpretation methods such as literal interpretation method, historical interpretationmethod，systematic interpretation method and objective interpretation method anddraw the following conclusions: The guardians should take vicarious liability withoutfault when minors infringe others, having done the duty of guardianship is only anissue that can mitigate their liability; Pay compensation expenses from his propertypreferentially when minors have property is not a liability but only a means ofpayment; The defendant in the minor infringement lawsuit should be the guardian andshould never be the minors. Then contact other provisions of Tort Liability Law, wecan conclude that: when minors in schools and other education institutions infringeon other minors, guardians and the educational institutions which have failed in hisduty should take liability by shares and the liability that the educational institutionstaken is in the first place; When minors are abetted or helped to tort, the guardian andthe abettor or helper should take the one-way joint liability. According to theconclusions above, we can have a comprehensive understanding of the liability that guardian should take when minors infringe on other person in China.