On The Determination Of The Defendant In Cases Of Harm To Minors

In cases of juvenile harm,the responsibility of the ward,the responsibility of the guardian,and the litigation status of the ward and the guardian in the litigation process have always been one of the focuses of debate among scholars and practitioners.The nearly 40-plus years of historical and cultural evolution and institutional changes from the General Principles,the Civil Code Opinions to the Civil Code are related to a number of basic theoretical disputes such as tort liability capacity,capacity for civil conduct,subject matter of litigation,and joint litigation.In judicial practice,my country has formed a relatively fixed litigation experience and practical operation that can effectively resolve such disputes,but it is undeniable that there are still many major theoretical and practical problems.Conflicts in the Civil Procedure Law and the Interpretation of Civil Procedure Law in terms of litigant rules,the application space of tort liability capacity in substantive law,the modification of guardianship liability in several special guardianship situations and changes in enforcement procedures.The issue of additional enforcement parties.Although the academic circles have different opinions on the above issues,and the practical results are also mixed,but after sorting out,it can be roughly described along three lines.First of all,on the nature of the guardian’s responsibility,according to the source of the guardian’s responsibility,it can be divided into vicarious responsibility and personal responsibility.In fact,it is a different interpretation of the tort liability borne by the guardian in the first paragraph of Article 1188 of the Civil Code;and according to the relationship between the responsibility of the guardian and the ward,it can also be divided into supplementary liability and fair liability.This division method can also be seen as two explanation of the guardian’s responsibility in the second paragraph of Article 1188 of the Civil Code.Combining with the domestic and international main theories,it seems that the truth of the guardian’s responsibility should be based on the personal responsibility of the guardianship responsibilities conferred by the law,rather than vicarious liability.It is also a fair responsibility,not a supplementary responsibility.The second paragraph of Article 1188 of the Civil Code should be regarded as the responsibility balance rule between the guardian and the ward,in order to prevent the ward from using a large amount of property damage in extreme circumstances The special principle of fairness set by the adverse consequences of the victim’s expected interests.In most cases,the fact that the guardian owns the main responsible property should not be deliberately ignored,so the guardian’s main responsibility cannot be changed.Secondly,in view of the fact that my country’s substantive law has not recognized the capacity for tort liability and the difficulties in introducing the tort liability system,we should still adhere to the premise of denying the capacity for tort liability system that is different from the current civil liability capacity system,and comply with the current regulations on the capacity for tort liability.As for the provisions on the capacity of adults to cause harm,the exemption of the actual liability of the guardian should not depend on the construction of the tort liability system,but should further refine the existing specific application of the guardian’s performance of the guardianship responsibility to reduce his own responsibility.Regulation.Thirdly,based on the support of the different theories above,there are four theories about the litigation status of the guardian and the ward: the ward is the defendant alone,the guardian is the defendant alone,the guardian and the ward are listed as the co-defendant,and the guardian alone is set as no independent request.right third party.Based on the advantages and disadvantages of domestic and foreign theories,based on the two basic purposes of tort liability law,adequate relief for the infringed and balancing the interests of the ward and the guardian,as well as the agent ad litem theory and the joint action theory in procedural law,as well as civil enforcement It should be considered that taking the guardian as the sole defendant is the most suitable.This is not only the fundamental purpose of assuming responsibility in the substantive law,but also an inevitable choice to ensure the smooth connection between the procedural law and the substantive law.Litigation standard configuration of the case.As for the litigant status of minors,because they only play an auxiliary role in stating the facts of infringement in the trial procedure,and in the modern trial procedure,the judge does not have to rely on the statement of the ward to restore the facts of infringement,but usually The guardian’s description of the facts of the case is a reference,so the ward seems to be a witness to appear in court to give testimony,instead of having to be listed as a defendant.Finally,in the execution procedure,the parties to change and supplement the execution should take into account the significant difference in value pursuit between the execution power and the judicial power,and the principle of economical expeditiousness,the dependency of the substantive relationship,the consistency of the ownership of interests,and the procedural guarantee of the third party are The three basic criteria for judging this issue are that,in legislation and judicial practice,on the basis that the procedural law establishes the guardian as a separate defendant,the addition of the guardian as the person to be executed should be included in judicial interpretations or other normative documents.,and specify the property clues and property form evidence materials that the applicant for enforcement needs to provide when applying for the addition of his/her role as the person subject to enforcement.