Research On The Guardian's Litigious Status In Litigation About Tort Which Person Who Under Guardianship Done

The Civil Procedure Law explains the 67 th of civil law in 2005, ‘When person with no legal capacity or with limited capacity for civil conduct causes damage to others, they and their guardians are all codefendant.' It is worth nothing that in the guardian infringement lawsuit, the guardian may appear on the identity of the conflict, which possibly leads to a kind of phenomenon that the guardian passes the buck to the person under guardianship and damages their interests. In this paper,a combination of normative interpretation and case analysis is used to investigate the status of the guardian in the litigation of the tort of the guardian in the tort action, and specifically relate to the entity liability in such cases. And, some problems may arise that the judicial interpretation of our country regards the guardian and the person under guardian ship as a codefendant. Another problem is how to better coordinate the substantive rights and procedural rights of the guardian and the person under guardianship in practice. An last, this paper discusses how to coordinate the balance of interests from the litigation system. The full paper is divided into three parts.The first part is the analysis of the substantive law of the responsibility of the guardian. The responsibility of the guardian and the theoretical basis is the basic content of the relevant legal system. According to the “general principles of civil of law”133nd and the “tort liability law”32nd,in the person under guardianship's tort legal relationship, the nature of the liability of the guardian is an alternative liability, and the liability principle is no fault liability. The person under guardianship need to undertake fault liability based on personal fault. In really, it is not appropriate to deal with the case in accordance with logic of supplementary liability about the problem of the guardian's responsibility.In the second part, the theoretical analysis of status of litigation of the guardian in the guardian infringement lawsuit. In the academic circles, there is a claim that the guardian is a single defendant and a dual identity. It is selected by the plaintiff. However, the relationship between the substantive law and the procedural law can not be coordinated. Or these claims can not effectively protect the legitimate rights of the guardian, the person under guardianship, the victim.In the third part, the improvement of the legal status of the guardian in the litigation of the guardian's tort is discussed. It is feasible for the guardian to assume the dual identities in theory. However, when the interests of the guardian is invaded, the guardian can not serve as the agent and liment to participate in litigation. If necessary, the court should use its authority to replace it. At the same time, the court should involved in the review, breaking the monopoly of the legal agent and suggest setting up guardianship.