Research On The Responsibility And Litigation Status Of Damage Caused By Ones Under Guardian

In the case of damage caused by guardian,before the Supreme People's Court applies the interpretation of the Civil Procedure Law of the People's Republic of China(hereinafter referred to as the "Interpretation of the Civil Procedure Law"),the Civil Procedure Law of the People's Republic of China(Hereinafter referred to as the "Civil Procedure Law")provides that the guardian is the defendant,the guardian is a legal representative,but " Interpretation of the Civil Procedure Law " Article 67 provides that the guardian and guardian is common defendants.The reason that the legislator make the above changes,mainly is "People's Republic of China Tort Liability Act"(hereinafter referred to as "tort liability law").Civil and legal countries have fully debated on the status of litigants and guardians in cases of damage caused by the guardian.Besides,the discussions in various countries and regions are inseparable from the provisions of substantive law,forming a variety of doctrines and jurisprudence.Based on the experience of comparative law and the conflict between the substantive law and theory,this paper puts forward the direction of the responsibility and the status of litigation in the case of the damage caused by the guardian in the article from the angle of litigation and substantive law.According to the legislation and theory of tort liability in China,on the one hand,the guardian includes the people without civil capacity and the people to restrict civil capacity,the two are different in the responsibility: the people without civil capacity has no responsibility.That is he don't any bear tort liability in any case;the people to restrict civil capacity can do things which is adapt to their age.On the other hand,the nature of guardianship is personal responsibility.because guardian does not fulfill the duties of guardianship,he assumes the corresponding supervisory obligations.After clarifying the relevant issues of the entity,with different circumstances,the author provides the guardian and guardian of the litigation status.In addition to the introduction and conclusion,this article is divided into four chapters.In the first chapter,we mainly sort out the substantive law and procedural law stipulation on the damage caused by the guardian,and make an empirical research on the judicial situation of our country.Firstly,the initial interpretation of the relevant provisions in "Tort Liability Law" "Civil Procedure Law" and " the Interpretation of Civil Law",the author points out the unreasonabilty: why the law is more strict to the ones under guardian than the full civil capacity;the premise of its commitment to tort liability don't measure the fault,but the property.At the same time,"the interpretation of civil law " indicated that the ones under guardian and guardian for the common defendant.But in other types of cases(such as the guardian was wrong but the legislator did not take into account the unreasonable provisions of the substantive law),the guardian was still legal agent.Secondly,the author made a directional analysis of these cases.Although our law for the litigation status in such case has been unified,the judicial practice is still very chaotic.Some courts still treat ones under guardian as a defendant and the guardian as a legal agent.The court puts more attention to the settle of the substantive dispute,while ignoring the status of the parties.The judge in the case of the case is often concerned about the infringement Legal relationship between ones under guardian and the victim.It don't identify whether the guardian has done the duty of guardianship and the ones under guardian is responsible.In the second chapter,the author analyzes the perspectives of guardianship and the status of litigation.On the one hand,there is still no uniform view of the nature of guardianship in the Theorists.Now it is mainly on the discussion of alternative responsibility and personal responsibility.The author believes that it is personal responsibility.Because the premise of alternative liability lies in the establishment of the responsibility of the person.But the ones under guardian's ability must be determined in specific cases by the judge.That is the establishment of infringement is still in an uncertain state.Moreover,the law has set the guardian's duties.The guardian must be subject to supervision obligations.if he do not fulfill their own supervision obligation,then the ones under guardian commit a wrongful act,causing losses to others,it is in the absence of guardianship duties.On the other hand,the author mainly analyzes the current academic community on the status of the two sides of the different views of the corresponding assessment.Although the "interpretation of the application of civil law" has made a unified provision,the academic community is still controversial.There is no yet a unified view,mainly divided into three different directions: the ones under guardian as a defendant,ones under guardian and guardian as a common defendant,the ones under guardian as the defendant at the same time the guardian as a third party without a separate claim.The author believes that the three views of the academic circles are based on the provisions of the current substantive law in China.But the provisions of substantive law in fact have problem.if you can't re-apply to the substantive law to supplement and explain the status of the two sides of the guardianship,it does not make sense.The third chapter introduces the mainstream theory of civil law countries(France,Germany and Japan),and draws the inspiration.This paper takes the thinking of each country as a way of thinking and evaluation,so as to draw the inspiration to our country.In France,the guardians and adults on the ability is the same.What's more,in the guardian Responsibility the guardian can only be exempted from liability when the victim is faulty and force majeure.finally,in the case of the status of the law the law gives the victim the right to choose.The victim can file a lawsuit to the parents,or individually to the guardian,or to both the guardian and the ones by guardian,and the parent also participates in the proceedings as the legal representative of the guardian.Germany is the country to use of age and understanding to classify minors.In the guardian's responsibility,the law takes the principle of presumption of fault.Only the guardian can prove that they do not exist oversight or educational negligence can be exempt from liability;In terms of litigation,Germany treat the ones under guardian as a defendant,the guardian as the legal agent to participate in the proceedings.But it has the same rights and obligations to the parties.Japan has absorbed the practice of two countries in Germany and France.It adopted a model of legislation to judge the ability and judgment of minors as a single criterion.The law also takes the principle of presumption of fault.In terms of litigation,Japan and Germany take the same approach,the only difference is that the guardian's legal agent's identity is different from the parties.The fourth chapter,in connection with the provisions of the substantive law of China and the theory,the author learns from the way of thinking on the comparative law to explore the status of the guardians and ones under guardian in China.First of all,we should set up the different guardian in our country,using of age and identification ability to determine the capacity of ones under guardian.Civil capacity should be analyze in specific case.The judge should consider its ability to identify,and in the verdict to explain.Secondly,before we identify the nature of the guardian is personal responsibility,the guardian take the principle of fault presumption.In accordance with the general theory of the field of infringement,personal responsibility generally takes the principle of fault.But the victim is difficult to access the relevant information,so that the victim proves whether the guardian duty to guard the duties of this responsibility is too harsh.Standing on the principle of fairness,the author believe that the principle of fault presumption is more reasonable in judicial practice.Finally,in the custody of both sides of the litigation status,the guardian is divided into non-civil capacity and restrictions on civil capacity of people.For people without civil capacity,the guardian is not responsible,.So it will not become a defendant;The person can only sue the guardian on the basis of the guardian's failure to guard the duty.There are three situations in which there are three different situations for the victim's appeal: a lawsuit against the legal relationship between the ones under guardian and the victim,the ones under guardian is treated as the defendant;for the guardianship,the guardian is treated as a defendant;for the two legal relationship litigation,the ones under guardian and guardian are treated as common defendants,the court may choose to merge the case.