중국법상 미성년자의 불법행위 책임 - 「민법전」 제1188조의 해석론 -

Abstract

The legislative mode of minors’ tort stipulated in Article 1188 of the Civil Code of the People’s Republic of China is very different from the legislation of countries with civil law systems such as Germany and South Korea. Whether a juvenile should bear tort liability for damages caused to others is not judged on the basis of liability, but whether he has property as the standard. Judges have inconsistent understandings of the terms “pay compensation costs from one’s own property”, minors whose property have not yet been identified will have to pay under the express of if they have property. The Chinese theory believes that the guardian shall bear the responsibility for the infringement of minors, but there are different ideas on how to understand “pay compensation costs from one’s own property”, such as the theory that the guardian bears supplementary responsibility, or the theory that the minor bears fair responsibility, there are also a few opinions that both guardians and minors should bear tort liability. This paper argues that the root cause is the interweaving and mixing of judgment (should) and the execution (actually), taking the premise of whether the execution can be taken as the premise of the responsibility. This is a mistake because it confuses cause and effect, which leading to difficulty in understanding. This paper proposes the following interpretation ideas: the guardian assumes no-fault responsibility, and the guardian only reduces the responsibility when he proves that he has fulfilled the guardianship obligation; the minor should also bear the fault tort liability by himself. Whether or not a minor has property is not a prerequisite for his responsibility.