Study On The Liability System Of Adult Self-determined Guardianship In China

The guardianship system for adults in our country came into being with the needs of an aging society and the society’s concern for vulnerable groups.Article 33 of the "General Principles of Civil Law" has made principled provisions for the self-determined guardianship system for adults,but how the self-determined guardianship system for adults operates in the current legal framework requires further clarification by the law.With the establishment of the self-determined guardianship system for adults in China,the guardianship system for adults in our country will show a trend that will take the selfdetermined guardianship as the core system in the future.This article attempts to study the responsibility of the self-determined guardianship when the adult is protected by a guardian to cause damage to a third party on the basis of absorbing the latest intentional guardianship theory and foreign advanced legislative experience,and combining with the provisions of Article 32 of the Tort Liability Law.Looking forward to providing useful reference for the improvement of the self-determined guardianship system for adults in China.This article mainly includes the following aspects.The first part is the basic theory of the self-determined guardian’s liability system for adults.The guardian’s liability system is an important system combining the guardianship system and the tort liability system."Guardian’s Liability" is not all civil liabilities that a guardian must bear in breach of guardianship duties,but specifically refers to the guardian’s liability for damages caused by the ward to third parties for damages as stipulated in Article 32 of the Tort Law.The self-determined guardian of adults belongs to the category of guardian,and should bear the corresponding civil legal consequences when the ward causes damage.This article analyzes the concept of rights protection and freedom of conduct in tort law to clarify the value measurement of guardian’s liability.The self-determined guardian’s liability system for adults have certain characteristics in terms of the liability of the guardian and the liability of the ward,and there are obvious differences from the guardian’s responsibility of the minor.The second part is the nature of the self-determined guardian’s liability for adults.By sorting out the relevant theories and analyzing the substitute liability advocated by the Tort Liability Law in depth,it is advocated that the self-determined guardian’s liability for adults should be positioned as his own liability to achieve a balance of interests between the guardian,the ward and the victim.The third part is the determination of the self-determined guardian’s liability for adults.The guardian’s liability as stipulated in Article 32 of the Tort Liability Law itself belongs to the tort liability of special subjects,and there are certain differences from the general tort guardian’s requirements.When it is determined that a guardian’s violation of guardianship duties causes the ward to damage the legal interests of others,he shall bear the guardian’s liability.This article believes that the self-determined guardian’s liability for adults should be based on the presumption of fault.The assumed guardian’s liability must meet the following four conditions: one is that the behavior of the ward causes damage to the third person,and the other is that the guardian do not perform guardianship duties,the third is the causal relationship between the intentional guardian’s omission and the result of damage,and the fourth is the self-determined guardian’s fault.The fourth part is the guardian’s liability to assume the responsibility of guardian.Taking the relationship between the two articles of Article 32 of the Tort Liability Law as an entry point,it analyzes the shortcomings of our current law that does not adopt the tort liability capacity system,and advocates the mode of the comparative law "separate liability + joint liability + equity liability".