The Research On The System Of By Guardian Tortliability

When by guardians carry out illegal behavior aggression upon one’s right of property and body, whether their guardians need to liable for the damages as the first person identity or not? And then we need to think about the responsibility of the by guardians who do the illegal behavior ? Whether they can be the legal position of person or not ? how can we define the responsibility of by guardians ? which doctrine can we adopt to stipulate the guardians’ and by guardians’responsibility ? all this questions troubled our experts.Chinese legal prescription of tort by person under guardianship centers on Article 133of General Principles of the Civil Law. In the process of legislation of Tort Liability Law of 2009, the issues concerning tortuous responsibility of person under guardianship was not improved regarding relevant regulations of Civil Law according to the changing times. Instead, the issues kept most of the regulations of Civil Law, leading to hot debates regarding tortuous responsibility of person under guardianship causing people injury in the theoretical cycle. The opinions of the legislative committee and experts did not solve problems of scholars concerning tortuous responsibility of person under guardianship.When the by guardian make in violation of the provisions of law, and lead to the other people’s body and property damage.There are probably two liability subjects after the occurrence of tort behavior by person under guardianship:the person under guardianship or the guardian of the person under guardianship. Tort Liability Law and General Principles of the Civil Law confirm the liability subject basing on the status of proprietary assets of the person under guardianship. If the proprietary assets of the person under guardianship is sufficient for compensating loss caused by the person under guardianship, such party shall undertake tortuous liability; otherwise, the guardian shall undertake tortuous liability. Under the social background of deep-rooted paternalism and by the influence of traditional feudal ethical code of the child’s intelligence and ignorance, gains and losses and merits and demerits all implicate the father., such rule can solve most disputes. However, it becomes more and more common that persons under guardianship own proprietary assets with the improvement of economic conditions. If such rule continues to be used, it will certainly lead to unnecessary burden to persons under guardianship and possibly lead to the result that guardians does not need to undertake tortuous liability by themselves; that is because the occurrence of tort behavior by person under guardianship is possibly due to the lack of supervision and person under guardianship does not intent to infringe. Under such circumstance, person under guardianship will have to undertake the fault of the guardian.The reason why such conflict occurs is that in the theoretical field of civil law, system of the civil capacity for action is used to replace the system of civil liability ability, and people believe that the civil capacity take the place of civil liability ability. It is such substitution of system that leads to controversy in confirming liability subject and doctrine of liability fixation etc.Therefore, system of capacity for tortuous responsibility should be introduced in the course of building system of tortuous responsibility of person under guardianship. The Civil Laws stipulates that a natural person shall have the capacity for civil rights form birth. Rights and obligations exist together like twins and incurrence of an obligation is additional condition of enjoying civil rights. Thus capacity for responsibility is a part of capacity for civil rights since birth.After the confirmation that the person under guardianship enjoys capacity for responsibility, anyone responsible related to the behavior shall be confirmed guilty or not. Thus different standards for confirming different faults are needed to confirm faults of each actor. Meanwhile, we shall take the doctrines of liability fixation into account and treat different actor with different doctrines, according to the general essential elements of tortuous liability. After confirmation of these regulations, whether the person under guardianship owns assets and the status of his assets shall influence the specific performance of final tortuous liability instead of the liability subject. In such case, it is truly consistent with the original purpose of legislation of the tortuous liability of person under guardianship that makes sure the rights and obligation of actors and persons in charge are in balance.Therefore, in the course of confirmation of tortuous responsibility of person under guardianship, whether the person under guardianship has tortuous responsibility shall be considered. Faults of the person under guardianship and guardian in the occurrence of tort, doctrine of liability fixation of tortuous responsibility of each party and the specific methods of bearing liability etc shall be taken into account comprehensively to precisely define the liability issue of tort by person under guardianship.