Liability For Damage Caused By Guardian In Entrusted Guardianship

In the case of entrusted guardianship,the responsibility for the responsibility of the guardian caused the chaos in the judicial practice.The court may cause the guardian and the faulty trustee to bear joint and several liability,or the faulty trustee to bear the corresponding liability.In some courts,the guardian or the faulty trustee is solely responsible for external compensation.In a few cases,the faulty trustee is responsible.Supplementary liability.The chaos of liability reflects the court’s determination of the entrusted guardianship,the scope of the trustee,the rights and obligations of the guardian and the trustee,the principle of liability of the guardian,and the responsibility of the guardian and the fault trustee Consensus and other issues have not yet reached a unified understanding.The responsibility for the damage caused by the guardian in the entrusted guardianship involves two parties responsible: the guardian and the faulty trustee.On the one hand,in the responsibility of the guardian,first of all,the principle of imputation should not be a presumption of fault,but no fault liability should be adopted;secondly,in the responsibility of the guardian,the subject of the act is the ward,and the responsible subject is the guardian.The separation of the subject of responsibility means that it is a substitute liability in nature.Finally,the difference between the responsibility of the guardian in the entrusted guardianship and the responsibility of the guardian in the general situation is mainly as follows: First,according to Article 22 of The General Principles of Civil Law of the People’s Republic of China,the relationship between the guardian and the trustee The agreement has the effect of countering external third parties,such as the aggrieved party;secondly,in terms of external liability,whether it is joint liability of the fault trustee of Article 22 of The General Principles of Civil Law of the People’s Republic of China or Article 1189 of the Civil Code of the People’s Republic of China.The corresponding liability of the fault trustee,the fault of the trustee will directly affect the external responsibility sharing of the guardian.On the other hand,for the trustee’s responsibility,the scope of the trustee should be limited first;secondly,the responsibility of the trustee is clarified based on the unfulfilled fiduciary duties and limited applicable control theories and danger theories;Finally,in terms of the way of taking responsibility,the case of law and legal provisions are used to explain the liability form of the fault trustee.With regard to the responsibility of the guardian and the trustee,Article 1189 of the Civil Code of the People’s Republic of China amended Article 22 of The General Principles of Civil Law of the People’s Republic of China to change the joint liability of the faulty trustee and the guardian to the responsibility of the trustee if it is at fault At first glance,the liability of the trustee is a change to the form of the liability of the trustee,but the "corresponding liability" does not have a corresponding tort liability form in Chinese law,which makes the theory of "corresponding liability" exist.Different interpretations are possible.This article interprets this article on the basis of Article 1189 of the Civil Code of the People’s Republic of China as the basis for hermeneutic research,examining judicial practice opinions,and taking into account the logic of Article 1189.If necessary,refer to the "When there is a fault" The provisions of "undertake corresponding responsibilities" are systematically interpreted and applied analogously.This article considers that the agreement between the guardian and the trustee should not be effective against third parties.It is reasonable to delete the other agreement of the parties in Article 1189 of the draft.The corresponding liability assumed by the fault trustee should generally be interpreted as a share of responsibility.However,the possibility of joint and several liability is not excluded under special circumstances.