论监护人侵权责任的承担

Guardians' Assumption of Torts Liability

无民事行为能力人、限制民事行为能力人致人损害,产生的赔偿责任由监护人承担,被监护人有财产的例外。因我国立法中没有责任能力的规定,没有区分承担侵权责任的主体,司法实践和理论上对监护人侵权责任的归责原则亦有争议。监护人的侵权责任应当适用过错推定责任原则,一方面要保护被监护人,另一方面也要注重受害人利益的平衡。家庭责任保险的引入和推广,能够有助于这一争议的解决。

A person without or with limited civil liability capacity causes damages to others, his or her guardian should assume the liability, but if the ward possess property, he or she should assume the liability on their own. There are no rules of civil liability capacity in China law, the law does not distinguish guardians from wards when it comes to the assumption of liability, and there are disputes about principle of imputation in theory and judicial practice. Doctrine of fault presumption should be applied to guardians＇ torts liability, on one hand the wards ought to be protected, on the other also should be considered. The introduction and popularization of family liahilitv insurance will contribute to the solve the disputes.