Concerning The Rule Of Contributory Negligence In Cases Of Minors Being Infringed

Contributory negligence can be described as a common legal rule,but its judicial application has been seriously questioned.Especially cases of minors being infringed,because they are not only related to minor victims and injurers,but also involve the interests of guardians based on the special relationship between minors and their guardians,so the balance of interests between the three roles promotes that the application in such cases is becoming more and more complicated.This paper takes the judicial practice as the entry point,combines the theoretical basis of contributory negligence,analyzes and responds to multiple controversial issues one by one,and finally proposes to reconstruct the rule of contributory negligence in cases of minors being infringed.Although this article is superficial,it is also expected to benefit the judicial practice.In addition to the introduction,this article is divided into four chapters.The first chapter is based on the judicial practice investigation.With the "China Judgements Online" as the search platform,five typical cases are selected from the 111 valid samples.This article points out the current problems of the application of contributory negligence existed in cases of minors being infringed.The second chapter expounds the theoretical basis of the rule of contributory negligence in cases of minors being infringed.It is divided into two parts:The first part is about the legal basis of contributory negligence,including "punishing the victim""protecting the injurer""Prevention of damage""causality theory" and "fairness and justice",and clarifies that the legal basis of the rule of contributory negligence is the principle of self-responsibility and fairness;the second part describes contributory negligence's constituent elements,includes that the victim is at fault,the victim's behavior must be misconduct,the fault of the victim has a causal relationship with the occurrence or expansion of the damage and the victim has the ability to offset negligence.The third chapter expounds that the rule of contributory negligence shows the characteristics of expansion in the application of cases of minors being infringed currently,which are manifested in three aspects:first,in the scope of the subject,from the victim to the victim's side;second,in the applicable field,from fault liability to non-fault liability;third,in responsibility sharing,from mitigation of responsibility to mitigation and exemption of responsibility.The fourth chapter reflects on the various applicable problems in the current judicial practice,and rethinks and reconstructs the rule of contributory negligence in cases of minors being infringed,including correctly recognizing the negligence of minor victims,reasonably identifying the negligence of guardians and scientifically setting the proportion of responsibility,and then makes relevant analysis,discussion and improvement.