自然人民事责任能力理论的重新检讨——兼论被监护人致人损害民事责任归属的立法选择

The Restudy to the Theory of Capacity for Civil Liability of Natural Person——Furthermore the choice who should bear civil liability when the ward causes damage to others in law

一切自然人都具有民事权利能力和民事责任能力。民事责任能力与民事行为能力无关,而取决于民事权利能力。被监护人致人损害的,应适用过错责任的归责原则。无民事行为能力人因为不存在过错,不承担民事责任。限制民事行为能力人致人损害时,被监护人自己如果有过错,应当承担民事责任。监护人在其履行监护义务时有过错的,应对被监护人致人的损害承担民事责任。我国关于被监护人致人损害民事责任归属的立法有修改的必要。

Every natural person has the capacity for civil rights and civil liability. The capacity for civil liability has nothing to do with the capacity for civil conduct. The capacity for civil liability is concerned with the capacity for civil rights. If a person without or with limited capacity for civil conduct causes damage to others,he need not bear civil liability if he has not fault. Every person without capacity for civil conduct causes damage to others, he need not bear civil liability because he has not fault. If a person with limited capacity for civil conduct causes damage to others,he shall bear civil liability if he has fault. the guardian shall bear civil liability for the damage his ward causes to others,if he has fault in doing his duty of guadianship.Our law about who should bear civil liability when the ward causes damage to others should be amended.