Study On Educational Institutions Tortious Liability For School Bullying

In recent years,minor students school bullying cases occurred frequently,and the consequences are becoming more and more serious.In early December 2016,The Bullying Incident at Zhongguancun second primary school of Beijing raised extensive discussion about the phenomenon of campus violence and bullying on the network again.In judicial practice,the educational institutions and the guardians of minors always dispute about tortious liability,and there is a significant division on application of the tort liability law between judges.In social practice,educational institutions tend to position themselves as mere referees rather than the athlete,defining the campus bullying behavior as the slapstick between students.As a result,the debate has become shriller,while school bullying phenomenon has not been well curbed.In order to protect the minor students,it is necessary to analyze the concept,the principle of imputation,the constituents of liability and the tort liability assuming of the minor students' bullying.On the subject,the tort liability of campus bullying can be divided into three parts: the liability of young perpetrators,the liability of the guardians and the liability of the educational institution.China's civil legislation has adopted the view to take the liability of minors negatively,so the liability of minors who bully others are borne by their guardian.Because of the education and management of minor perpetrators and victims at school time,the educational institutions have the obligation of security guarantee,which acts as and education and management responsibility here.China's research on the civil liability of minor students school bullying in the domestic academic circles is mainly focused on the relations between the students,the guardians and the educational institutions,and the distribution of liability.Academic mainstream view is that education institutions and minors are not between the custody relationship,but education and management relations.Therefore,most scholars believe that educational institutions in the minor students' bullying cases should bear the fault liability.This article's standpoint is that the tort between minor students includes intentional tort,negligent tort,and accident.The school bullying is a kind of intentional tort.Based on this definition,chapter 1 of this article is about the research of domestic and foreign law,pedagogy,psychology and other related research results and the current laws and regulations,and then summarizes the educational institution liability of the minor students school bullying behavior,and then studies the relationship between educational institutions and students in different periods and different jurisdictions.Chapter 2 analyzes the principle of imputation,it starts from comparative law and then analyzes the fault liability established by Article 38 and 39 of the Tort Liability Law in principle.Chapter 3 analyzes the constituents of liability.Because the direct victim of the minor students school bullying is a minor student,and the educational institution tort liability is based on the violation of the liability of education and management,it is necessary to analyze the constituent of the student's tort liability when we studying the constituent of the liability of the educational institution.Chapter 4 divides the tort liability assuming into five categories: the defense cause,the principle of imputation,the scope,the exemption and the way of tort liability assuming.At last,the article summarizes the full text.In the minor student school bullying,the educational institutions assume their security obligations violating liability in accordance with the Article 38 and 39 of the Tort Liability Law,based on the principle of fault liability(fault presumption of responsibility).As educational institutions are presumed to have a high degree of professional knowledge and experience to ensure the safety of students,the standard of exemption is much higher.The liability of educational institutions should not only be from the education management of the students who bully others,but also the students who are bullied.Even if the victim of school bullying is also at fault,it cannot be simply identified as exemption.It is necessary to review whether the educational institutions have paid attention to the obligations.The suicide incidents caused by the minor students school bullying should be prudently applied to the victims' fault.On the tort liability assuming part,the school bullying always lead to personal damage and mental distress,some will also lead to property damage.