Contributory Negligence Of Juveniles And Guardian's Mistake

As for the liability for damages,based on the consideration of fairness and good faith,when the claimant for damages is also at fault for the occurrence or expansion of the damage,the liability of the responsible party for damages should be alleviated.It is called “the rule of contributory negligence”.There is some controversy over whether it can be regarded as the fault of the claimant to reduce the claimable damages,when a third party with a special relationship with the claimant for damages is at fault for the occurrence or expansion of the damage.This is an issue about“contributory negligence of the third party”.Its essence is to study the impact of the third person's fault on the compensation for damages.As for the issue about“contributory negligence of the third party ”,the most controversial issue is the impact of the fault of the guardian(third party)who fails to perform the guardianship duties on the minor's claim for damages when the victim is a minor.It can be described as the relationship between “ contributory negligence of juveniles and guardian's mistake” which is the core of this paper.The paper mainly discusses as for the liability for tort damages and the liability for breach of contract damage,When the guardian of the victim is at fault for the occurrence or expansion of the damage due to failure to perform the guardianship duties,may the guardian's fault be regarded as the minor's fault so as to reduce theliability of the injurer or the debtor according to the rule of contributory negligence ?It does not involve liability for other damages(such as liability for damages caused by contracting fault).With regard to the liability for tort damages,based on the common interests,the guardian's liability for damages to minors,the principle of fairness,the benefit of minors,distribution of the risk of claim,the degree of fault,the simplification of legal relations and so on,some scholars hold the view that the fault of the guardian should be regarded as the fault of the minor,and then the liability for damages of the injurer can be alleviated by the rule of contributory negligence.Based on the principle of protecting minors,the purpose of the guardianship,the inability of minors to choose their own guardians,the principle of equal treatment,and the development of comparative law,some scholars believe that the liability for injurers should not be alleviated.At the same time,based on the principle of fairness and the simplification of legal relations,when the guardian and the ward have a special identity or property relationship,Japanese scholars consider that the guardian's fault should be regarded as the fault of the minor.For the scholars' arguments above,“ the principle of equal treatment ” can provide sufficient persuasion.Other arguments may not be used as arguments or as supplementary arguments.According to the legal environment in mainland China,if it is necessary to apply “the principle of equal treatment”,the feasible methods are to determine whether the minor's fault and his guardian's fault can be regarded as a whole through paragraph 1 under Article 32 of the Tort Liability Law,and whether the fault of his guardian can be regarded as the fault of minor who is the victim through whether the fault of guardian can be regarded as the fault of minor who is the injurer.However,through the above logical steps,we are unable to determine whether victims and injurers should be treated equally.Therefore the legal issues in tort damages cannot be resolved through the “the principle of equal treatment”.To this end,only according to the provisions of the Tort Liability Law,namely Articles 11 and 12 of the Tort Liability Law,we may determine the type of tort liability constituted by the injurer and the guardian,and then judge whether it is applicable toreduce the liability of the injurer through “the rule of contributory negligence”.As for the liability for breach of contract,the domestic and external scholars all agree that when the creditor is at fault for the occurrence or expansion of damages,the debtor's liability for damages should be alleviated.The main arguments include the principle of fairness,the benefit of juveniles,the protection of trade order and the principle of equal treatment.Actually,only the principle of equal treatment can be used as good argument.When the juvenile is the debtor,since the guardian is the minor's performance assistant,in order to utilize the principle of equal treatment to explain the guardian's fault,it is necessary to explore the internal basis of the debtor's responsibility for his performance assistant's fault to judge whether the creditor and debtor can be treated equally.As for the internal basis,the scholars' views mainly include ensuring the entire damages,the risk of infringement of creditor's right,the benefit of debtor,the principle of contractual relativity,the principle of strict liability,respect for creditors' trust in the debtor,respect for the foresight on the contract,and respect for the parties' consensus.With meticulous analysis,it can be found that only respect for the parties' consensus is the internal basis.Since respecting the agreement of the parties is not only the request of the debtor,as one party of the contract,the creditor should also respect the agreement of the parties and should also be responsible for the fault of his performance assistant.Because the guardian is the assistant of the minor,when the minor is the creditor,he should bear the fault of his guardian,and then the fault of the guardian should be regarded as the fault of the minor.Then the liability for damages of the injurer should be alleviated according to the rule of negligence.