Substantive and Procedural Issues of Guardian Liability
Guardian liability falls under vicarious liability,where the guardian is the subject of tort liability and should bear full tort liability directly to the injured party,rather than bearing the corresponding or supplementary liability.Article 1188(2)of China's Civil Code stipulates that compensation should first be paid from the property of guardians who possess assets,with any shortfall to be covered by the guardian.This provision overly protects both the injured party and the guardian,while neglecting the protection of the ward.Parents,as the legal guardians of their minor children,should jointly assume guardian liability,meaning they bear joint and several liability.In the case of divorced couples,the parent who does not live with the minor child should also bear full guardian liability.Stepparents who do not have a custodial or educational relationship with their stepchildren do not bear guardian liabilitys.Once stepparents adopt their stepchildren,they assume guardian liability,and biological parents of the ward no longer bear guardian liability.The relationship between the tort liability of instigators and accomplices and the corresponding liability of guardians who fail to fulfill their duties,as well as the tort liability of guardians and entrusted guardians at fault,falls under partial joint and several liabilitys.In lawsuits concerning guardian liability,both the guardian and the ward are co-defendants.
Civil Codeguardian liabilitysupplementary liabilitycorresponding liabilitypartial joint and several liabilitys
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