A Study On The Issue Of Ondertaking The Infrigement Obligation Of The Person With Incomplete Behavior Ability Causing Person Damage

With regard to the issue of undertaking the guardian obligation within cases of infringement that the person with incomplete behavior ability causes person damage, our country primarily extends adjustment by Article 32 of the Tort Liability Law that the responsibility shall be undertaken by the guardian, which is the method of bearing liability recognized and widespread in various countries. However, on account of difference in national conditions, cultural tradition and system, patterns of undertaking are different within various countries, particularly in the cognitive ability, capacity to bear responsibility, responsibility nature, whether the fault is regarded as the basic structure and liability basis, and so on.Our country adjusts the guardian liability within cases of infringement that the person with incomplete behavior ability causes person damage primarily by the Article 32 of the Tort Liability Law. But between the Clause 1 and Clause 2 of this article there is confusion on semantic interpretation. Is the principal responsibility part the guardian or the person under guardianship? What is the liability principle? What is the relation between the principal responsibility parts? What is the relation between the two terms? All kinds of confusions on the interpretation bring about not only disorder in terms of understanding but also inconformity in terms of applicable law.Therefore, on the basis of the above-mentioned comparison and analysis, the article proposes the explanation and perfects the suggestion for reducing disputes. The suggestion confirms that in our country the basis of undertaking guardian obligation should be the violation of guardianship duty, that the nature of guardian obligation belongs to self-responsibility, and that the responsibility of person under guardianship and guardian is independent respectively. Meanwhile, according to the Article 6 of the Tort Liability Law, our country should adopt the liability principle of focusing on tort liability and giving consideration to justice within the case of infringement that the person with incomplete behavior ability causes person damage. While hearing the legal case, the judge should estimate whether person under guardianship is at fault according to the practical situation of the case, such as the age and intelligence. The guardian bears no-fault liability. But whether the guardian should undertake the due obligations depends on whether the behavior of person with incomplete behavior ability accords with the key component fit for the infringement act. If the behavior of the perpetrator is in fault objectively, the guardian obligation shall emphasize that fulfilling the guardianship duty will reduce the liability for compensation. In the meantime, it stipulates that the equity principle should be applied and confirms the applicable situation of offender without responsibility and guardian without fault. When the property of guardian is insufficient and justice appears lost, the stipulation will be enacted from the angle of protecting the interests of the victim. It reasonably explains the guardian responsibility and its basic constitution. Simultaneously, it expects to confirm that the guardian shall bear joint liability with the person under guardianship. After having undertaken the due obligations, the guardian together with the person under guardianship could confirm the respective obligation according to the internal obligation share.