| Wards causing damages is not only connected with some traditional tort law problems,such as victim's relief,wards and guardian's liability,but also related to guardian's duty fostering and disciplining wards and ward's comprehensive and free growth.According to Article 32 of Tort Liability Law,We can believe there is a clear conclusion that guardian should bear strict liability when wards causing damages,but it remaining a doubt that whether guardian's liability is self liability or vicarious liability.In author's opinion,there is a necessary link between guardian's liability and its basement that guardian's duty.Therefore,self liability is more appropriate.In author's opinion,guardian's liability is not the same as employer's liability.On account of urging guardian to perform duty and compensating victim's damages,guardian should beard liability when ward's behaviour conform to tort's objective component.In author's opinion,in essence,if wards should pay compensation when they have their own property,wards will actually bear a nearly strict liability.Although presumptive wrongs liability is mainstream principle to determine guardian's liability in Europe,there are also a few country utilize strict liability,andthere is a advolution tendency between two kinds of principle.In author's opinion,the reason chose which principle is depend on different country's circumstances and social development's tendency.On account of the undeveloped of guardian's liability insurance,judiciary may have more space to balance wards,guardian and victim's benefit if we utilize presumptive wrongs liability.There are five kinds of capacity for liability,including objective fault pattern,abstract standard pattern,specific cognizance pattern,abstract standard + specific cognizance pattern and capacity for civil conduct pattern.Tort Law utilize capacity for civil conduct pattern,therefore,only when someone has full capacity for civil conduct,can he has capacity for liability.In author's opinion,the purpose of capacity for civil conduct is to protect ward's benefit and transaction's safe,therefore,it is appropriate to utilize a specific pattern.But capacity for liability is utilized to balance ward and victim's benefit,it is concerned about whether wards should bear liability,therefore,it is not wise to utilize a same pattern with capacity for civil conduct.Besides,although if someone has a limited capacity for civil conduct,he can deal with some appropriate transaction,he won't has a capacity for liability.At last,criminal responsibility is the most strict legal responsibility,but on account of Article 32 of Tort Liability Law,someone who may bear a criminal responsibility can't bear a civil liability.Although there are a few country utilize equitable liability to compensate victim,no one like Article 32 of Tort Liability Law,wards should pay compensation if they have their own property.Generally speaking,equitable liability should consider each party's various factors,Article 32 of Tort Liability Law only consider whether wards have personal property.Therefore,it is hard to say that Article 32 of Tort Liability contain a equitable liability.Fault liability principle and self liability principle request some who should bear liability is in fault,but Article 32 of Tort Liability Law make wards pay compensation if they have personal property,therefore,it violate fault liability principle and self liability principle.The purpose of Tort Law is to balance conduct's freedom and safety of interest,therefore,Article 32 of Tort Liability Law should balance ward and guardian's conduct's freedom with victim's safety of interest.Article 32 of Tort Liability Law is only to balance guardian's conduct's freedom with victim's safety of interest,If ward doesn't has any capacity for reasoning.In author's opinion,it is no appropriate that a undeveloped birth welfare is accompany with a more strict guardian's liability and it is not useful to achieve Article 32 of Tort Liability Law's purpose that urging guardian to perform duty and protect ward's interest.For ward who has a certain capacity for reasoning,Tort Law should not only be concerned about guardian and victim's interest,but also confirm a rational space for ward's conduct's freedom,promote minor comprehensive and free growth and help mental patient come back to society.In author's opinion,Article 32 of Tort Liability Law may make guardian to utilize a excessively strict or excessively indulgent way to treat wards.Obviously,it is violate to Tort Law's purpose.One of main Tort Law's function is to compensate victim and urge assaulter should be patient by appropriately distributing loss between assaulter and victim.Thus when we distributing loss between assaulter and victim,we should consider a variety of factors,including victim's loss,capacity for liability,fault and economic circumstances.In author's opinion,Article 32 of Tort Liability Law may excessively prefer victim's interest lest victim's loss can't be compensated.Obviously,it is not rational that impose much burden on ward and guardian to make sure victim's interest.If we can utilize a more flexible pattern to appropriately balance victim,ward and guardian's,it will be more helpful for achieving Tort Law's purpose.Totally specific cognizance is the most ideal pattern for capacity for liability,but its judicial cost may to high to support and leave a excessively broad space for discretionary.In author's opinion,add limited capacity for liability into Tort Law.Generally speaking,wards under certain age without any capacity for liability,wards above certain age have a limited capacity for liability.For judicial convenience,it may be practical that formally unify the standard of limited capacity for civil conduct and limited capacity for liability.If Tort Law change guardian strict liability to presumptive wrongs liability,someone think victim's loss may be not compensated.In author's opinion,Article 32 of Tort Liability Law has excessively prefer victim's interest,presumptive wrongs liability can rectify this benefit unbalance.And we can improve guardian's burden,provided guardian's liability insurance gradually develop in the future,actually,it is almost same as strict liability.We can add actual equitable liability if we don't make wards to pay compensation when they have personal property.Equitable liability should consider each party'benefit,economic circumstances,fault,victim's loss,and on account of a old saying“a child is better unborn than untaught”,guardian should also bear this equitable liability. |
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