| The negligence offset rule refers to a damage sharing mechanism that can reduce or exempt the injurer’s compensation obligation when the victim is also at fault for the occurrence or expansion of the damage.In the scope of the applicable subject,the current legal provisions of our country do not stipulate that the applicable subject of the negligence rule is limited to a specific group,it should be interpreted as including all natural persons who have been infringed.However,when the victim is a ward,there are many problems in the application of this rule: one is how to determine the negligence ability of the ward;the other is the relationship between the guardian’s negligence and the ward’s negligence;the third is the guardian’s negligence of duty responsibility issues.Solving the above problems is the key to ensuring that the negligence offset rule can be properly applied when the victim is a ward,and it is also a dispute that should be resolved in the field of tort law in my country.The status of ward’s negligence capacity is not currently recognized in Chinese tort law,and there are many improprieties in assuming the tort liability of the ward.Therefore,we should reconstruct our country’s tort liability capacity system and affirm the ward’s negligence capacity,and the victim has the negligence capacity as the prerequisite for the application of the negligence offset rule.The judgment standard of age + identification ability should be adopted for the determination of negligence capacity.In this way,not only can the all ward be identified as the people who do not have the negligence capacity can also prevent blindly expanding the interpretation of the scope of the subject of the negligence capacity.On the issue of the relationship between the guardian negligence and the ward’s negligence,we should deny the fixed adjudication model of "the integrative theory of negligence" in judicial practice,affirm the independent status of the ward from the root,and clear that the ward with negligence capacity is the subject of the rule,and the negligence offset rule can be directly applied to reduce the liability of the perpetrator.According to the principle of self-responsibility in tort law,the perpetrator should and only be responsible for his own fault,so the ward only needs to bear the responsibility for his own fault,and the responsibility for the fault of the guardian cannot be borne by the ward.This will avoid violation of the guardianship system,and will realize the legislative purpose of protecting the legal rights and interests of the ward.In addition,when there is an inevitable connection between the damage suffered by the ward and the dereliction of duty of the guardian,the "ordinary people’s duty of care" should be adopted as the criterion to determine that the guardian is negligent,and the guardian shall be judged to bear the negligence tort liability for the victim.Regarding the distribution of responsibilities between the guardian and the infringer,It should be determined that the guardian and the infringer constitute infringement by several persons who have unintentionally contacted.In the ways of bearing,they should adopt average responsibility to the ward,and the negligence offset rule cannot be applied. |
