Guardian’s Litigation Status

The phenomenon of minor infringement is widespread. According to the Tort liability law article 32, victim can through a litigation to get relief.In trial activities, all of the court are clear with 32 as the referee basis. But in the judgment, guardian’s litigation status and responsibility is different. In general, there are three main cases: 1.The minor is listed as the defendant, but ruling the guardian responsibility for compensation; 2. Minors and guardian is listed as co-defendants, they bear the liability for compensation together; 3. The guardian is listed as the defendant, and bear the liability for compensation alone. Different court make different judgments, this is not a good phenomenon in the litigation practice. To solve the problem, the supreme people’s court of the People’s Republic of China have made a judicial interpretation. Article 67 of the civil procedure law judicial interpretation has provisioned:guardian and minor are the co-defendant. On the surface, the civilian explanation will solve the question of how to list the litigation status of the guardians, but there are many substantive problems unresolved, which will lead to a new controversy in the future.Although the judicial interpretation of the supreme people’s court provided for minors and their guardians of infringement as co-defendant, solved the problem of the guardian’s legal status, but it failed to clear the compensation obligation subject, and it will lead to different responsibility in the future. To eventually solve this problem, it is necessary to sort out the sticking point of substantive law, which are the guardian of the imputation principles, responsibility nature, the tort liability of minors, and the understanding of article 32 of the tort liability law, etc. From the perspective of comparative law, this paper uses the basic legal theory and legal interpretation methods, sums up the first cases of infringement lawsuit main body in the practice of minors, to confirm all kinds of situation, and then summarized of the extraterritorial several main countries on the issue of law, and in article 32 the tort liability act of our country on the basis of analytical finally offered himself on the issue of law thinking, in order to solve the above problem.