The Research On The Tort Liability Of Wards Causing Damage To Others

It has always been controversial that if wards should bear liability for causing damages to others. Article 32 in Tort Liability Law defines guardian’s tort liability, which basically keeps the same definition from Article 133 in General Principles of Civil Law of People’s Republic of China. From the literal meaning, the Article can be analysed into two dimensions. Firstly, when a ward causes damage to others, the ward’s guardian takes on tort liability which can be diminished if the guardian has fulfilled his guardian obligation; secondly, when a ward owning property causes damage to others, the damage is compensated by the ward from his own property, and if it is insufficient, the guardian will compensate for the surplus part. However, indeed, there are many problems lying on both legislative doctrine and legal interpretation theory dimensions in this Article, and in the related judgments in juridical practice as well.About the relation between the first and the second clauses in Article 32, Legal interpretation theory has gradually developed a set of interpretation paths, which are coordinate interpretation path, complementary interpretation path and internal-external interpretation path. These three interpretation paths all developed their researches on wards’ tort liability of causing damage to others from the view of balance of interest, and drew their own conclusions after the combination of paraphrasing literal meaning and analysing logics. However, we still can discover that any interpretation theory is not self-consistency as long as jointly analysing the two dimensions of logics and value of each theory, which results from their deficiency from certain point of view. Therefore, it appears to be extremely necessary to return to the point of discussing about the internal logic structure of guardians and wards’ tort liability composing when we attempt to analyse the interpretation theory’s deficiency.When analysing the reason of interpretation theory’s deficiency, we can find out main reasons as follow, confused constitutive elements of wards’ tort liability, unclear basis of guardian liability and dislocation of the value in law articles. Guardians and wards are major subjects of tort liability, and the final responsibility they undertake is proportional to the composition of their liability. Except for the flaws in defining wards and guardians’ liability, the major deficiency in interpretation theory in this case is due to the inaccurate value which Tort liability Law deciding wards’ liability was established on. Guardian and ward’s liability weight is inappropriately enhanced since Tort Liability Law’s legislation was guided by Relief Pattern. As a result, it becomes difficult to analyse relations between premises of undertaking liability and articles when such many principles including principles of liability for wrongs, presumptive wrongs liability, liability without fault and equitable liability are all mixed together in the Law.To resolve problems mentioned above, we need to deconstruct logics underlying wards and guardians’ tort liability identification. Regarding to the modes deciding their tort liability, there are four major ones recorded in Comparative Law, and these four modes should be considered critically before being employed in China’s judicial practice. When analysing the core issues of deconstructing wards’ tort liability,we need to pay attention to two following points. One point is that we need to distinguish if the ward has capability of discernment, and the other one is that property issue is only applied to the condition of equitable liability. When it comes to deconstructing guardian’s liability, another two core points should be concerned. First, the guardian’s liability he should bear is his own liability. Second, principle of presumptive wrongs liability should be employed into determining guardian’s liability. Those core points should be obeyed consistently in China’s future legislative doctrine and current legal interpretation theory. On the level of legislative doctrine, ward’s tort liability affirmation should be conducted based on the premise of confirming the ward’s capacity of civil liability. In terms of actual principle of liability attribution, the principle of presumptive wrongs liability in Continental Legal System ought to be referenced when identifying guardian’s liability; on the other hand, wards’ capacity of discernment will determine if he commits the tort, and the principle of liability for wrongs is applied to the attribution if the tort is affirmed. Speaking of financial status, it can only be quoted under the condition of having equitable liability between ward and guardian;otherwise, it is not able to be concerned as a factor of evaluating capacity for responsibility. On the level of interpretation theory, legislative doctrine’s legal effect should be sourced as the guide of sensible interpretation on the application of capacity for liability, liability attribution principles of guardians undertaking infringement and wards’ with property undertaking infringement. At the same time, with employing capacity of liability appropriately, we should interpret the principle of liability for wrongs as the principle of wards’ liability attribution,and interpret the 2nd rule in Article 32 of Tort Liability Law as the actual application condition for principle of equitable liability. Only if we make effort on employing both levels of legislative doctrine and interpretation theory simultaneously, can we gradually improve legitimate wards’ liability undertaking when causing damage to others.