On The School Liability For The Injuries Happen At The PE Classes In The Primary And Secondary Schools

Considering the judicial practice，this paper analyzes and discusses the natureand standard of the duty of the school to the minor students, the criterion of schoolliability and the approach to judge whether school is negligent on the school liabilityfor the injuries happen at the PE classes in the primary and secondary schools indepth.The paper consists of three parts:The first part elaborates the nature and standard of the duty of the school to theminor students. The school has the duty to educate, manage and protect the minorstudents. Such duty is not the guardian duty, the safety or security obligation or thecontract obligation. It is a statutory duty. The school shall do as the reasonable carefulparents would do to manage, protect and educate their children.The second part compares the different kinds of legislative patterns and thetheories of the criterion of school liability, introduces the current rule on this andexpresses the opinion of the author. The author supports our current rule that thecriterion of school liability shall be the fault liability principle while he thinks that theschool shall be presumed to have fault under all circumstances. That is because itwould protect the minor students better without making the school overwhelmed andurge the school to improve their ability. The author opposes the opinion which somejudges and local legislatures hold that the fair liability principle can be applied in thecases, as it has not been one of the “criterion of liability” under the current Chinese Tort Law. And its substitute------the Article24of the Tort Liability act shall not beapplied in these cases.The third part analyzes and discusses how to judge whether the school has faultin such cases. After comparing and analyzing the two major theories on judgingfault-----the subjective approach and the objective approach, the author points out thatthey have both strength and weakness. To balance the protection on the minorstudents and the enthusiasm of the school to carry out PE lessons, the author believesthat the suitable approach shall be the combination of the subjective approach and theobjective approach. The basic approach is the objective approach. It means the schoolshall comply with what the national syllabus, the national standard on the facilitiesand equipment for the PE class, the list of equipment which is necessary for primaryand secondary schools to carry out PE lessons which is made by the local educationbureau whom are authorized by the MOE(Ministry of Education) and therequirements from the textbook or it will be considered as negligent. The subjectiveapproach will be applied when the school has a better ability which exceeds theobjective standard. If such school fails to do what it can, it would also be consideredas negligent even if it do as what objective standard asks.This paper is innovative in the four following points.First, the paper sorts and analyzes the opinions on the nature of the duty ofschool to the minor students, such as guardian duty, statutory duty and “duty from thelaw”, and gives the author’s own reason on why he supports the opinion that suchduty is statutory duty.Second, the paper expresses the opinion on the standard of the duty of care of theschool to the minor students.Third, the paper expresses why the author holds that the Article24of the TortLiability act shall not be applied in these casesFinally, the paper has proposed a new approach to judge the fault of the school tothe practice circle.