论《民法典·侵权责任编》的监护人责任设计——以“体系位移效应说”为切入点

The Design of Liability of Custodian in Tort Liability of the Civil Code——Starting From “the Theory of the Effect of Systematic Translocation”

学者对我国监护人责任的解读忽略了从《民法通则》第133条到《侵权责任法》第32条的体系位移效应。《民法通则》第133条受制于第132条一般公平责任条款,定位为特殊公平责任,监护人责任两款之间应作平行关系解读。《侵权责任法》第32条摆脱了第24条一般公平责任条款的约束,定位为特殊侵权责任,监护人责任两款之间应该作内外关系解读。未来《民法典·侵权责任编》上的监护人责任应该以侵权责任为原则,公平责任为例外。区分无民事行为能力人致害和限制民事行为能力人致害两种情形,前者由监护人承担无过错责任,后者由监护人承担过错推定责任。被侵权人无法获得充分救济的,再考虑被侵权人一方和被监护人一方的经济状况等实际情况分担损失,但不得对被监护人的生活和教育产生严重不利影响。

Scholars have neglected the effect of translocation of liability of custodian from Art.133 of the General Principles of Civil Law to Art.32 of Tort Liability Law.Subject to general liability based on fairness prescribed in Art.132,Art.133 is designed as special liability based on fairness,and the two paragraphs of liability of custodian should be interpreted as parallel provisions.Free from restriction of Art.24 which prescribes general liability based on fairness,Art.32 of Tort Liability Law is designed as special liability based on fairness,and the two paragraphs of liability of custodian should be interpreted as internal and external provisions.In the future Liability Section of the Civil Code,liability of custodian should be designed on the basis of tort liability as the principle and liability based on fairness as the exception.Harms caused by the person without capacity of civil conduct and the one with limited capacity of civil conduct should be distinguished,with the former bearing non-fault liability and the latter presumed fault liability.In the case where the infringed person cannot get full remedy,actual factors should be considered in sharing the loss,such as the economic condition of the infringed party and the ward party.Such sharing should not severely affect the life and education of the ward.