| In recent years,there have been frequent cases of campus infringement,such as the “Ctrip Kindergarten Child Abuse Case” in early 2017 and the “Red,Yellow and Blue Kindergarten Child Abuse Case” at the end of 2017.The compensation disputes arising from this have also increased year by year,which gives students The family,the school and the society have brought great losses.The application of the principle of imputation and the identification of school faults in campus infringement cases have become an increasingly difficult legal point and a hotspot and a difficult point in the practice of civil trials.To study the problem of school fault liability in China's campus infringement,the purpose is to improve the relevant system of tort liability in China,and provide legal protection and effective remedial measures for the resolution of campus tort liability disputes in practice,thus fundamentally reducing the problem.The occurrence of adult student infringement cases.What kind of obligations the school bears for its underage students directly affects the determination of the infringement liability of the school in the case.This paper analyzes and studies the improvement of campus infringement system through the following four parts:1.To enumerate the campus infringement cases that have been greatly affected in the past few years in the society,and find out the responsibility of campus infringement under Articles 38 and 39 of the Tort Liability Law of the People's Republic of China(hereinafter referred to as the Tort Liability Law).The deficiencies of the principle of responsibility in judicial practice,that is,the underage students are infringed by the faculty and staff members during their school days.The judiciary lacks sufficient legal basis for determining whether the school is at fault and whether it should bear the consequences of the damage.At the same time,define the concept of schools,faculty,and underage students in campus infringement.Then,limit the research focus of campus infringement: the underage students are within the scope of education and management of the school,suffer from the infringement from the school faculty,whether the school should bear legal responsibility,and what is the basis of its attribution.That is,the faculty and staff of the school conduct infringements on the underage students,the principle of imputation of the school's responsibilities and the applicable conditions.2.Analyze the problems existing in the legislation of tort liability in China.The legislation of China's campus tort liability is scattered among various legal departments,and there is no logically rigorous whole,which makes the judicial practice lack a unified judgment standard.In the process of determining the fault of the school,Articles 38 and 39 of the Tort Liability Law stipulate that the school has the responsibility for the education and management of underage students,and those who have no capacity for civil conduct and those with limited capacity for civil conduct are infringed by the school.Responsibility judgment is based on the principle of fault presumption and the principle of fault,but the standard of “fault” is not clearly defined.The "subjective standard theory" adopted by China's jurisprudence on "fault" also increases the difficulty of identifying the "subjective state of mind" of the school.Because the school legal person is a collection with many members,it is difficult to determine its subjective will in the judicial process.Therefore,the school's fault is not fully determined;according to the different behavioral abilities of underage students who suffer from campus infringement,different imputation principles apply to schools,which is beneficial to protect the legitimate rights and interests of underage students,but in the case of joint infringement,victimization Whether it includes people without civil capacity and those with limited capacity for civil conduct,should the burden of proof be reversed at this time? Moreover,people without civil capacity and those with limited capacity for civil conduct are also in a weak position.Applying different burdens of proof to campus infringement will inevitably lead to injustice in the application of law,and increase the burden of proof on those who are restricted by civil infringement.Therefore,the division of the capacity of underage students is too mechanical;the ability of people without civil capacity is poor,and they cannot protect their legitimate rights and interests after being abused by the campus.Schools on the strong side are more likely to prove and shirk their responsibilities,while they are both vulnerable.The restrictions on civil capacity are also difficult for people to protect themselves,which increases the difficulty of proof,and thus indirectly becomes a school excuses.And there is no clear criteria for “accidents” in one of the school exemptions.Should different “accident” standards be applied to underage students with different civil capacity? There is no clear legal provision in the above,so when determining the case of campus infringement,the school exemption is too broad.3.Through the study of the extraterritorial law of the campus tort liability system,it can be found that in France,the people with different behaviors who suffer from campus infringement apply the unified fault responsibility to identify the school responsibility,avoiding the unfairness in the division of students' behavioral capacity and legal obligations;Germany It stipulates that the school shall bear the responsibility equivalent to the guardian for the students within the scope of campus management,and enhance the scope and responsibility of the school.The United States has put forward the specific criteria for the determination of the school's fault,that is,the standard and scope of the “duty of care”,but the school is not It has an unlimited duty of care for students;Canada stipulates that the school should pay the same duty of care to its students as “careful parents” and assume higher legal responsibilities than the average person.The judges can be based on the age,quantity,and venue of the students.Specific division of school responsibilities.China's campus infringement legislation can learn from its fault recognition standards,the division of underage students' behavioral ability and the scope of attention obligations,and improve the legal system to ensure that underage students study and live safely during school.4.Through the study of the legislation on the infringement liability of the extraterritorial campus,the "objective standard theory" is adopted for the determination of the fault of the school in our country,that is,the fault is determined according to the scope and extent of the school's duty of care.And draw on several aspects of the implementation of the United States to pay attention to the implementation of obligations,to provide a reference standard for the identification of school faults;according to the education management relationship between schools and underage students in accordance with Chinese law,the school has special legal obligations to students,and its duty of care The source is the school's security obligations for students and the educational management relationship between the school and the students.In view of the above duty of care,we can learn from the US campus security system,consider the venue,number of students,age,psychological maturity,etc.,and establish a campus security system in line with China's national conditions,such as security and equipment safety,supervision and management staff The obligation to provide safety to students when providing articles;to refine the behavioral abilities of underage students in schools,to set the scope and extent of school duty of care in accordance with the level of behavioral ability,to provide schools with clear and operational standards of obligation to protect schools The security resources are allocated reasonably;finally,through the campus insurance system,a barrier is added to the school construction and student safety.School-led,strengthen communication and supervision of the Ministry of Education,insurance supervision departments and insurance companies,progressive progress,powers and responsibilities,Jointly guarantee the personal safety of minors during their school days and timely assistance after the violation,and try to reduce the damage to the interests of minors.Analyze and learn from the infringement liability disputes and imputation problems caused by the infringement of the faculty and staff from the school during the school's education.It puts forward perfect suggestions for the infringement liability of the campus in the places that are not clearly defined in the legislation,in order to accurately determine the school responsibility,protect the legitimate rights and interests of students and their guardians to the maximum extent,and reasonably classify the ranks of underage students.Take responsibility and make specific recommendations.With the improvement of the campus insurance system,the campus security is enhanced. |
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