On The Application Of Contributory Negligence Rule Of Injured Minors

Tort Liability Law,General Principles of Civil Law,and General Principles of Civil Law do not make provisions on the tort liability capacity of natural persons,which makes that the minors had been infringed,the courts tend not to considering their own negligence,instead of attributing the negligence of the guardians to the negligence of the minor victims directly applying contributory negligence to mitigating the liability of injurers.The theoretical basis of the contributory negligence rule is the principle of self-liability.In the case of minor victimization,attributing the negligence of the guardians to the negligence of the minor victims directly applying contributory negligence just violates the principle of self-liability.Secondly,regardless of whether the minor himself is of negligence or not,the contributory negligence rule should be applied on the grounds of the negligence of the guardian,that can not encourage the victim to adjust his behavior to avoid damage which is the function of the contributory negligence rule.Finally,the guardianship responsibility system stipulated in Article 32 of Tort Liability Law is unreasonable.No matter whether the minor himself is at fault,the guardian needs to bear legal liability for the consequences of damage by the minor injurers.This is for both minors and their guardians are too harsh.Therefore,the conclusion that the minor needs to bear the guardian 's negligence and apply contributory negligence based on the unreasonable guardianship liability system is not logically justified.This also violates the original intention of establishing a guardianship liability system to protect the interests of minors,which is not conducive to the priority and comprehensive protection of minors' interests of civil law.Regarding how to apply contributory negligence rule for cases where minors have suffered third-party damage,it is necessary to resolve two major issues: how to apply contributory negligence with minors 'own negligence and how to deal with that if guardians fail to perform their duties of guardianship.The first thing needs to be determined is that the minor victim applies the standard of contributory negligence based on his own negligence.The minor victim should have the contributory negligence capacity whose legal nature is tort liability capacity and behavior of minor vicitm should be of negligence.The judgment standard of tort liability ability is based on age and recognition ability.If a minor victim does not have the capacity for tort liability,contributory negligence rule shall not be applied.The standard of reasonable duty of care can be applied to judge the negligence of the minor victim.Secondly,the handling of negligence of guardians should be resolved through plural-party tort,requiring injurers and guardians should bear their respective responsibilities.If the injurer and the guardian are of intentionally joint infringement on the minor which is common tort shall bear jointly liable liability to the minor.In other cases,it is usually the accidental combination of the actions of the guardian and the injurer that caused the consequences of the personal injury of the minor so that they shall bear the share liability for minors in accordance with the provisions of Article 12 of Tort Liability Law.