Article 1188 of the Chinese Civil Code,which provides for the total vicarious liability of the guardian for damage caused to third parties by the ward,has given rise to a long-standing controversy and should be reflected upon.The problem lies in ignoring the spillover effect of the guardianship system on the guardian's liability and the impact of guardianship duties on the composition of the guardian's liability.In order to solve the above problems,firstly,the guardianship system should take full account of the dissolving effect of the guardianship system on the guardian's ability to assume responsibility;secondly,it should be confirmed that the guardian's liability is a fault-based liability premised on the breach of the guardianship duty,and the content and intensity of the guardianship duty should be clarified by typifying the roles of the guardian and the guardian;Finally,the constitutive elements of the guardian's and the guardian's own liability should be established at the interpretive level and consistent with the rules on the allocation of tort liability for unintentional contacts in the Chinese Civil Code.
guardian liabilityguardianshipduty of careduty of supportcapacity to actfault liability
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