| As for the liability when the ward infringing the rights and interests of others,although Article 32 of the tort law has made provisions,the understanding and application of the judges are quite different in judicial practice,and scholars in the theoretical circle also argue endlessly.Under the background of judicial circles’ unremitting pursuit of "similar cases,similar judgments" in order to maintain the "unification of the legal system",it is necessary to introspect deeply on the phenomenon of "different judgments of similar cases" in the cases of infringement by the ward.How to set up the liability mechanism of the ward’s tort scientifically,not only to meet the standard requirements of tort theory,but also to ensure the unity of judicial application,is the purpose of this paper.Popularly speaking,the problem of liability bearing is to solve the problem of who should be responsible for what reason,how to bear the liability and the reason for relief.Specifically to the infringement by ward,the core issues are the subject of liability,the principle of imputation,the form of liability and the evaluation of guardian’s performance of duties.This paper takes 316 judicial cases as samples,according to the logical order of the subject of liability,the principle of imputation,the form of liability and the evaluation of guardian’s performance of duties,shows the practice chaos in these four aspects one by one,demonstrates the legislative defects,theoretical errors and improvement suggestions of these four aspects from the academic point of view.Then it extracts the key of construction and deconstruction of the ward’s tort liability-"duty of care",puts forward "the theory of complementing duty of care " which considers the duty of care of the ward and the guardian together,in order to provide some reference for the theoretical construction of the tort liability of the ward,provide the principle reference for the judicial judgment of the case of tort of the ward,provide the empirical and theoretical reference for the future legislation,and help to maintain the judicial unity and promote the improvement of the legal system.In addition to the introduction and conclusion,this paper is divided into four parts.The introduction introduces the background and purpose of this paper,the literature review,the research ideas and methods,the theoretical and practical significance,as well as the innovation and shortcomings.The first part is the definition and historical evolution of the tort liability of infringement by the ward.Firstly,it defines the concepts of "the party of ward","the party of victim","the guardian’s liability" and "the ward’s liability".It points out that "the ward’s tort liability" includes the two aspects of "the guardian’s liability" and "the ward’s liability".It is the upper level concept,which has the characteristics of compound,particularity and complexity.Then it introduces the historical evolution of the system of the ward’s tort liability,extracts four kinds of liability determination modes under the interpretation of the current law,such as classification,sequence,stratification and compound.It summarizes the historical evolution characteristics of the system of the ward’s tort liability that "delete" is more than "increase","reduce" is more than "stay",and points out that the legislators’ pursuit to simplicity of law may be too one-sided.The second part is the subject of liability and the principle of imputation.Firstly,it defines the concept of " subject of liability " and " principle of imputation ",and introduces the judicial practice of "different judgment of similar cases" for the liability subject,the confusion of the selection of the principle of imputation for the guardian,the diversity of the selection of the standard of liability fixation for the ward and the neglect of the principle of liability fixation.Furthermore,it is argued that the duty of care of the guardian comes from the duty of care of the ward.The fundamental function of the duty of care of the guardian is to make up for the lack of the ability of care of the ward,to ensure that the duty of care of the ward not to act(not to infringe on others)is observed.It is also demonstrated that the ward who have certain capacity should bear his own liability from the four aspects of practice,history,comparison and theory.Finally,from the perspective of system interpretation,it is pointed out that Article 32 of the tort law is set up in the chapter of "special provisions on the subject of liability",which does not involve the principle of imputation of the guardian or the ward;nor is it necessary to specify the principle of imputation in the special legal provisions on the ward’s tort liability.When the ward as the subject of law infringes,according to its type of conduct,the principle of imputation can be determined by other provisions.The third part is the form of tort liability and the evaluation of guardian’s performance of duties.Firstly,it defines the concepts of "liability form","guardianship duty" and " the guardian’s performance of duties ",and introduces the "different judgment of different cases" of liability form in judicial practice,as well as the phenomenon that guardians often reduce their responsibilities due to the fault of victims or third parties,and rarely because they prove that they "fulfill their guardianship duty".Then,based on the theory of the form of liability,it is proposed that the ward’s tort liability should be classified according to the capacity of the ward and the guardian’s performance of duties,which cannot be "one size fits all";and through empirical and theoretical analysis,it is pointed out that when the guardian "performs the duty of guardianship",there will be the fault of the victim or the third party,accident or force majeure and other reduction methods,the problem of liability reduction can be solved in other articles.It doesn’t need to be stipulated in the special provisions of ward’s tort liability,otherwise it will conflicts with the general rules of the tort law and be questioned by the fairness.The fourth part is the rule design based on "the theory of complementing duty of care ".Firstly,this paper demonstrates that the crux of practice disorder lies in the lack of attention to the duty of care and the duty of care is the essential element of tort liability,then focuses on duty of care and puts forward " the theory of complementing duty of care ",that is to say,the duty of care of both the ward and the guardian is the duty of care who with full civil capacity,so as to consider the subjective elements of the party of ward when the ward infringes,and demonstrates“ The theory of complementing duty of care is a reasonable explanation of the core disputes in four aspects: the subject of liability,the principle of imputation,the form of liability,and the evaluation of guardian’s performance of duties.Then,based on the theory of complementing duty of care,it points out that different rules of the ward’s tort liability should be established according to the different capacity of the ward and the law’s requirements for the duty of care;it demonstrates the value,form and practical factors that affect the design of the rules,then it points out that the risk of inadequate relief for victims can be solved by the provisions of fair liability,and the rules based on the theory complementing duty of care can not only avoid conflict with other provisions,but also have a wide range of antecedent practice basis,so it can achieve the balance of these three factors,then this paper puts forward suggestions to improve the current legal provisions.The conclusion part summarizes the previous paper and emphasizes the main position of this paper,points out the shortcomings,unfinished issues of the research,and the future research direction. |
