Research On The Defendant Proper In The Lawsuit Of Damages Caused By Minor

Minors are generally refers to the citizens under the age of eighteen, belong to the legal persons with no capacity or with limited capacity. Because of the mind are not mature, they can’t have a correct cognition of many behaviors and consequences, therefore, damage caused by minors often appears in social life, resulting a lawsuit. In such cases, it’s almost have no problem that the victim filed a lawsuit as the plaintiff, but who is eligible defendant become a problems plagued the theory and practice of civil litigation for a long time. Due to the different understanding of the People’s Republic of China law rules"(hereinafter referred to as the "general rules of the civil law") Article 133 and the names of the People’s Republic of China tort liability law(hereinafter referred to as provided for in Article 32 of "tort liability act"),there are three ways to determine the defendant which is regard minors who cause damage as the defendant, or the guardian as the defendant, or the minors and their guardians as co-defendants.In 2015 the supreme people’s court formulates the civil procedure law of the People’s Republic of China judicial interpretation provisions "without civil capacity or with limited capacity for conduct causes damage to others, do not have person of civil action competence, limited capacity, and their guardians as co-defendant." However, this explanation is consistent with the legal or not, there is still a controversy. In fact, in accordance with the provisions of the general principles of the civil law 133 and the tort liability law, "Article 32, in addition to being identified as the legal person with full capacity for civil conduct of minors, the minors do not have capacity for civil liability, are not entitled to qualified to bear civil liability, civil liability caused by the infringement by the guardian to bear. Even if a minor has a large amount of personal property, the minor is not the subject of external responsibility, but the compensation fee shall be paid in priority from the property, and shall be paid by the guardian after the guardian to the external compensation. In litigation caused by minor,the guardian due to the actual assume liability to pay compensation is endowed with the eligible parties of identity, and not just in the proceedings generation for assert their rights and obligations, in order to safeguard the rights and interests of the minors themselves. Therefore, the victim can only regard minor’s guardian as the defendant to filed a lawsuit.