Research On The Appliance Of Contributory Negligence When Minors Being Infringed

Minors have the characteristics of insufficient capacity,weak risk predicting and control ability,etc.But contributory negligence is a kind of rule which is used to allocate the damages,when it is applied to minors,there are many conflicts and difficulty of judicial practice.Based on judicial practice,this paper uses case study method,concludes that there are two main problems in the application of the rule of contributory negligence in infringement cases of minors,The first dispute is whether the minor’s capacity for contributory negligence is necessary for the application,and if so,what standards should be adopted to determine the problem.the second is whether the guardian and the minors’ negligence be regarded as the same is uncertain.In the judicial practice,when contributory negligence is applied to the case of minors being infringed,There are fewer cases in which the fault of the victim is considered,or due to lack of capacity for civil liability provisions in legislation,the fault of guardian is introduced in the determination of minor’s fault.Therefore,the introduction of a guardian’s negligence,and the negligence of the guardian is considered to be a minor victim’s negligence,and then,reducing the liability of the victim,but the referee who opposed the idea is not rational enough.These two issues are equally inconsistent in the academic field.The application of the rule of contributory negligence in juvenile infringement cases can be roughly divided into two aspects:Firstly,for the minors themselves,It should be affirmed that the minor victim can be applicated to the rule,and the applicable premise is that the minor have capacity for contributory negligence and exist contributory negligence,among which the capacity for contributory negligence should be identified by the comprehensive standard of "age + recognition ability".The classification of age refers to the classification standard of civil capacity of natural person,while the recognition ability depends on the judgment of individual cases.On the premise of distinguishing from the offender’s fault standard,the author makes an independent evaluation of the minor’s own behavior,makes a unified comparison between the offender’s fault and causation,and explores the application of contributory negligence to the minor based on the special factors of their own;secondly,for the guardian of a minor,the minors do not have capacity for contributory negligence,and the guardian in fault who is the parent of the minor can be applicated to the rule,In determining the fault of the guardian,the age of the minor child,the time and space of the case and occurrence or expansion of the damage should be taken into account.At the same time,reasonable limits should be made on the proportion of the abatement of the liability of the offender in certain types of cases.In addition,it is necessary to distinguish the internal and external relations of guardianship.In the internal relationship of guardianship between the guardian and the ward,after determining the subject of the contributory negligence,if the fault can’t be applied to the guardian,the guardian and the offender in the external relationship shall bear their respective responsibilities according to their respective faults and causation.