On The Application Of Negligence Offset Rule Of Minor Victims

Negligence offset rule is a kind of damage sharing mechanism,aiming at balancing the legitimate interests between the injured person and the injured person.When the injured person has negligence in the occurrence or expansion of the damage,according to the principle of fairness and the principle of self-responsibility,can mitigate or exempt the injured person's compensation obligation.And minors are in a disadvantaged position in all aspects of social life because of their immature body and mind.In the cases of minor victimization,the minor victim has the dual disadvantaged status of "minor" and "victim".Because of the particularity of the victim's identity,the application of negligence offset rule is required to be higher.Therefore,it is necessary to combine the current legislation and judicial practice,make a thorough study on the relevant problems of the application of negligence offset rule to minor victims,and put forward solutions on this basis.In terms of legislation,article 131 of the General Principles of Civil Law and Article 26 of the Tort Liability Law have made general provisions on the negligence offset rule.But there is no clear provision on the negligence of the minor victims and the negligence of the guardians,as well as the liability of the injuring person and guardians in the cases of minor victimization.In terms of judicial practice,most of cases refer to the gist of the two replies from the Supreme People's Court more than 20 years ago,forming a mode that the minors had been infringed,rarely considering the negligence of themselves,but instead recognizing the guardians has the negligence of guardianship,and attributing the negligence of the guardians to the negligence of the minor victims directly applying negligence offset rule to mitigating the liability of injuring person.The rough processing mode of minors' infringement cases in our legislation and judicature obviously don't conform to the principle that comprehensive protection of juveniles,either to the spirit of modern tort law of self-responsibility.In order to solve the application of negligence offset rule in minor victimization cases,it is necessary to start with two controversial issues: the ability of minor victim's own negligence offset ability and how to identify and assume guardian's liability for guardian's negligence.Firstly,the problem of the minor victim's own negligence offset ability.Our country legislation should reconstruct the system of responsibility ability,judge the responsibility ability of minor victims organically based on the standard of age and identification ability,and recognize that minor victims have the ability to offset the negligence corresponding to his cognitive ability.The minor victim who has the capacity can applies negligence offset rule to his own fault,so as to mitigate the compensation liability of the injuring person.When the minor victim himself has applied negligence offset rule,the guardian's guardianship negligence is no longer evaluated repeatedly.The minor victim who doesn't have the capacity to negligence offset shall not apply the rule to offset the negligence of himself or his guardian.Secondly,the problems of identifying and assuming of guardian's liability for guardian negligence.The guardian's negligence of guardianship can't be generalized with the negligence of the minor victim,also can't be used as the negligence of the minor victim to reduce the liability of the injuring person.In cases of minors' infringement,the guardians' negligence also causes damages,and should also bear tort liability to minor victims.The injuring person and the guardian should share the responsibility for the minor victim.They have no common intent or negligence for the minor victim's damage,but the result of the damage is caused by the accidental combination of their respective acts,which accords with the constitutive requirements of the tort of several persons without intentional contact.According to the Article 12 of the Tort Liability Law,the injuring person and the guardian should bear assume share responsibility,so as to retain the minor victims' complete right in law.The determination of guardianship negligence should be based on the criterion of "as much as you normally pay attention on dealing with your own affairs".