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Problems And Perfection In The Application Of The Rule Of Fault Offset In The Case Of Infringement Upon Minors

Posted on:2019-11-26Degree:MasterType:Thesis
Country:ChinaCandidate:F J LiangFull Text:PDF
GTID:2416330542482878Subject:Law
Abstract/Summary:PDF Full Text Request
The development of minors,both physiologically and mentally,is not sufficiently mature to make them socially vulnerable,a group requiring special protection.The special protection of vulnerable groups is a general practice in all countries of the world and a legal principle that my country adheres to.At the same time,the rule of fault counterbalance has important legal value and legal significance.It embodies the principle of fairness and responsibility.However,there is no clear legal provision in the application of the rule of fault balance in the case of a minor who is injured.In judicial practice,courts usually do not consider the applicability of the rule to minor victims themselves,but rather rely on the presumption that the Guardian has failed to perform his duty of guardianship and apply the rule directly.That is,according to the provisions of Article 26 of the Tort Liability Law,to make fault to balance,reduce the amount of damages for the offender.It is unfair that such an approach leads minors to assume excessive responsibilities at a young age when they are ignorant and lacking in awareness.Contrary to the legal principle of comprehensive protection of minors,it is not conducive to the growth of minors,but also runs counter to the basic legal spirit of the responsibility for violations.Therefore,whether in the legal provisions,or in the specific handling of the relevant cases,there are still shortcomings in the research and application of the rule of fault and the need for further improvement.In order to fully protect the interests of minors,fair and reasonable distribution of responsibility between victims and perpetrators,this paper through case investigation,literature analysis method to comb and analyze the relevant issues.After combing,it is found that the main reason for such judgment in judicial practice lies in three aspects,one is that the current law of our country avoids the ability of minors to be responsible,the other is guided by the spirit of the reply of the Supreme people's court,and the third is influenced by the traditional concept of family in our country.On the basis of combing the problem and analyzing the reasons,the solution of the problem is further studied and the following legal suggestions are put forward.The first concerns the issue of the capacity of the minor victims themselves to make amends.It is necessary to recognize the minor victim's ability to make a faultcommensurate with his ability to act.The reason for this view lies in the fact that the civil law of our country recognizes that the minor has the ability to behave in accordance with his age and intelligence,and can analyze,judge and identify the danger and damage to his personal and property rights and interests within the limits of his capacity to act,thus dominating and controlling his own behavior.Therefore,it is suggested that according to the age division of the civil law of our country,it can be concluded that the minors who have reached the age of 8 have the capacity to make a fault balance,and the minors who have reached the age of 8 do not have the ability to know and control whether they will be in danger or not.Of course,this division is not the only standard for "one-size-fits-all",in judicial practice,should be judged in the light of specific cases.A minor victim can not be held responsible even if he or she has cause for the damage when he or she is incapable of making a mistake.The negligence liability of the Guardian is no longer evaluated after the minor victim has applied the rule of fault set-off.The second is about the negligence of the Guardian.In the case of the minor's injury,the Guardian shall also be liable for the damages caused by his omission,the Guardian shall have the right to claim damages against the Guardian,and the Guardian and the tortfeasor shall be jointly liable for the infringement,both of which shall not be jointly intentional or negligent in the case of the minor's injury,Instead,their respective acts were accidentally combined to cause harm to the minor,in line with the elements of unintentional contact with a number of Torts,and therefore considered that the Guardian and the perpetrator should be held duly responsible under article 12 of the Tort Liability Act.The scope of the share is determined by the large and small force of the Guardian and the tortfeasor for the cause of the damage.
Keywords/Search Tags:Rule of Fault Counterbalance, Minor Fault, Negligence Counterbalance Capacity, Guardian Fault, Liability by Share
PDF Full Text Request
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