| The implementation of civil law norms through litigation first requires us to deeply understand the value and function contained in the provisions.The functionalist interpretation of article 1188 of the Civil Code reveals that,the norm of guardian liability has four values:relieving the loss of the victim,protecting the interests of the ward,protecting the freedom of the guardian and maintaining the guardianship relationship.Based on Chinese traditional ethical emotion,it constructs a victim relief model of dichotomy between material and debt through the theory of damage objectification and objective imputation,and by introducing the guardian as the subject of tort liability,combined with the rules of the ward’s performance of absolute right obligation,the rules of due diligence and liability reduction,the rules of the ward’s payment of compensation and the rules of guardian’s supplementary liability,the abovementioned four functions are implemented.Guided by the value of substantive law and with the help of the theoretical tools of procedural law,we will find that there are some conflicts between the relevant procedural law norms;The study of procedural law is too dependent on substantive law to think by procedural thoery,and there are still gaps in many fields,so there is a lack of macro overall thinking;The application of judicial practice to law also presents a chaotic situation,and the value of substantive norms has not been implemented.The implementation of the norm of guardian liability through litigation,we should respect the right of action of the victim,who can choose to sue the ward or guardian alone or jointly.When the victim sues the ward and the guardian successively basing on the right of claim for absolute right and the right of claim for tort damage compensation,the ward is the only qualified defendant in the pre-litigation,the guardian,as the legal representative,should be bound by the participation effect of the pre-litigation,and the ward is the third part without independent claim in the post-litigation.When the victim sues the guardian and the ward at the same time,the litigation form should be understood as a similar necessary joint litigation.The court should find out the damage scope of the victim and the amount of responsibility that the guardian can reduce when he performs his guardianship duties.The final judgment is that the guardian should bear the absolute right obligation first,and the guardian should compensate for the insufficient part.In order to maintain the guardian relationship and protect the ward,we should introduce the principle of family litigation,emphasize the presence and statement of the ward,restrict the debate doctrine,punishment doctrine and the openness of litigation,actively apply the doctrine of power discovery,introduce social forces and play the healing role of mediation.In the process of enforcement,we should first make the ward perform the absolute right obligations,then the executor judge the degree of compensation for victim’s loss by performing the absolute right obligation according to the "theory of damage difference",find out the objective state of the ward’s independent property through formalism,delimit the scope of ward’s property used to pay compensation expenses in combination with the ward’s living needs,the due diligence of the guardian and other factors,and take preservation measures for the guardian’s property at the same time.When implementing enforcement measures,we should adhere to the concept of good faith enforcement,emphasize the education for the ward and the persuasion to the guardian,apply the "principle of enforcement exhaustion" to the ward within the defined property scope,and apply the principle of "Conditional execution basis" to the guardian. |
