The Establishment Of The Ability Of Tort Liability Of Minors

The content of Article 1188 of the Civil Code stipulates the liability of guardians and the source of compensation property in case of infringement by guardians.Due to the lack of the system and standard of the capacity of tort liability of minors in this article,different dilemmas and controversies have arisen in practice and theory.In practice,there are many cases with the same case and different judgments,which are mainly reflected in different forms of responsibility,different judgment standards and different principles of responsibility of guardians.For the construction of the tort liability capacity system,there are opposing and supporting views.The opposing view believes that the negligence objectification standard can replace the function of the tort liability capacity system,while the supporting view believes that the lack of the tort liability capacity system will lead to the difficulty of maintaining the consistency in the construction of laws.At the same time,there are also differences in the interpretation of Article 1188 of the Civil Code,mainly including the debate on whether the first paragraph establishes or includes the tort liability capacity system and the definition of the nature of the provisions of the second paragraph.Through the analysis of different interpretation theory,we know that the civil law system does not stipulate the ability of tort liability system,the lack of this system not only causes many differences to its first understanding,but also affects its second different definition of interpretation theory.Different countries or regions to establish the system of tort liability ability to present different legislative models,including legislation on the basis of age of the Netherlands,on the basis of recognition of Japan and Taiwan region legislation cases,on the basis of "age and ability to recognize" the German legislative cases,Of course,it also includes the legislative example of the ability not to adopt tort liability represented by France.From the perspective of comprehensive comparison,the legislative example of "age + identification ability" in Germany overcomes the shortcomings of excessive mechanization of separate age standard and high judicial cost of separate identification ability standard,and it is more reasonable to be inclusive.The basic problem of constructing the tort liability capacity system is to study whether it has an independent legal basis and independent judgment standard,both of which cannot be separated from the study of the relationship between tort liability capacity and behavioral capacity.There are two sides to the relationship between the two theoretically: They are respectively the generalized theory of capacity for tort liability which holds that capacity for tort liability is really the generalized theory of capacity for tort liability and the independent theory of capacity for tort liability which holds that capacity for tort liability and capacity for tort are substantially different.Compared with the generalized theory of capacity that replaces the capacity for tort liability with the standard of capacity,the independent theory of tort liability points out that the capacity for tort liability has unique value in theory,which is more consistent with the requirements of the ought level of legal theory,and is more consistent with the reality level of practice compared with the generalized theory of capacity.When determining the construction scheme of the tort liability system for minors,we should first consider to select the differentiated or combined legislative model of minors and mental disabilities.Compared with the differentiated legislative model,the combined legislative model has less changes compared with current legislation in our country.Second,can consult the German legislative cases under the legislation mode of "abstract standard + concrete standard" select tort responsibility judgment standard,on the basis of the reserve the guardian no-fault liability on the basis of "behavior ability and ability to recognize" pattern of establishing the system of minor tort liability ability,behavior ability as abstract standard,Where it is stipulated that a person without civil capacity does not have the capacity for tort liability,and the identification capacity is used as a specific standard to stipulate that a person with limited capacity has the ability to identify his or her act,he or she shall bear tort liability.At the same time,the corresponding function of compensation payment clause under the tort liability capacity system should be clarified.