论被监护人受侵害时的法律救济

Research on the Legal Remedy of the Injured Ward

被监护人受监护人之外的第三人侵害且监护人存在监护过失时,我国当前的裁判基本将监护人过失作为被监护人过失而与第三人过失相抵。这种裁判既没有明确的法律依据,又欠缺充分的正当化说理。依照现行法,此时被监护人的受害应主要依据《侵权责任法》第12条进行裁判救济,这种救济与我国当前司法裁判在责任分担依据、监护人责任保留等方面存在值得关注的差别。

In Chinese present judicial adjudications,the guardian＇s negligence is always treated as negligence on the part of the ward and the injuring party＇s compensation is accordingly reduced based on the contributory negligence system,in cases where the ward is injured by the third party and the guardian is negligent in guardianship. This sort of adjudication is neither supported by specific rules,nor fully justified and reasoned.The ward＇s injury in these cases should be redressed mainly in accordance with the 12 th article of Tort liability Law of the People＇s Republic of China.There are some noticeable differences,including the basis of liability sharing and the retention of the guardian＇s liability,etc.,between this kind of remedy and the present practical adjudications.