On July 11th, a 4-year-old girl squatted in the middle of the road in Shizhu County, Chongqing to play. The driver of a white off-road vehicle started the vehicle. Unfortunately, the girl was knocked down and pressed under the wheels because she was in a blind spot. In an emergency, the surrounding crowd reached out and joined forces with a trolley to rescue the little girl. Finally, the little girl was diagnosed with multiple fractures, which were not life-threatening.

 

As soon as this news is released, the issue of children's personal safety has once again attracted social attention. In mid to late July each year, most primary and secondary school students officially start their summer vacation. However, during the supposed happy holidays, there are always many tragedies involving children's personal safety. Children's lives are fragile, so how does the law protect children's rights and interests from infringement?

 

In cases involving the personal safety of children, due to the ever-changing reasons for the occurrence of the case, the division of tort liability also needs to be determined based on the case itself. Therefore, we will classify and analyze several types of cases that are prone to occur.

 

1、 Drowning

In the scorching summer, many parents choose to take their children to the swimming pool for swimming, and drowning cases also belong to the high incidence period. After the unfortunate occurrence of a drowning case, except in cases where the guardian has inadequate supervision, According to Article 1198 of the Civil Code, "If the operators, managers, or organizers of public places such as hotels, shopping malls, banks, stations, airports, sports venues, and entertainment venues fail to fulfill their safety protection obligations and cause damage to others, they shall bear tort liability." In most cases, swimming pools also need to bear corresponding responsibilities.

 

Generally speaking, the criterion for determining whether a swimming pool needs to take responsibility is whether it has fulfilled its safety obligations. For example, has the swimming pool undergone industrial and commercial registration in accordance with regulations, obtained a "Health License", and filed with the Sports Bureau, meeting the conditions for external business operations? Are corresponding lifeguards equipped, warning signs and language set up according to regulations? Did the lifeguard take timely remedial measures after the incident?

 

Based on the above, it can be determined whether the swimming pool has fulfilled its safety guarantee obligations. If it has not fulfilled its complete safety guarantee obligations, it can be held accountable.

 

2、 Infringement by educational institutions

Recently, the incident of actress Liu Haocun's parents opening a dance school causing a girl to become paralyzed has sparked heated discussions, and infringement cases by educational institutions have gradually entered people's careers. During the summer vacation, some parents also choose to send their children to various educational and training institutions.

 

Article 1199 of the Civil Code: If a person without civil capacity suffers personal injury during their study or life in a kindergarten, school or other educational institution, the kindergarten, school or other educational institution shall bear the liability for infringement; However, those who can prove that they have fulfilled their educational and management responsibilities shall not be liable for infringement.

 

Article 1200: If a person with limited capacity for civil conduct suffers personal injury during the period of studying or living in a school or other educational institution, and the school or other educational institution fails to fulfill its educational or management responsibilities, it shall bear liability for infringement.

 

Article 1201: If a person without civil capacity or with limited civil capacity suffers bodily harm from a third party other than a kindergarten, school, or other educational institution during their study or life in a kindergarten, school, or other educational institution, the third party shall bear the liability for infringement; If kindergartens, schools, or other educational institutions fail to fulfill their management responsibilities, they shall bear corresponding supplementary responsibilities. Kindergartens, schools, or other educational institutions may seek compensation from third parties after assuming supplementary responsibilities.

 

According to the above provisions, it can be seen that educational institutions bear the presumption of fault responsibility for injuries suffered by individuals without civil capacity, and the reversal of the burden of proof is a relatively strict legislative measure. For infringements by persons with limited capacity and third parties outside of educational institutions, the basic principle of fault liability and the principle of "who claims, who provides evidence" shall apply.

 

Case: Li is a student of a certain kindergarten. While playing in the playground, the kindergarten teacher urged the children to leave in a timely manner due to the end of school. When Li ran from the playground to the door, he was tripped by building equipment stacked on the playground, causing Li's arm to hit a stone on the ground (the playground was being repaired at the time, without warning lines or warning signs), The collision caused severe deformation of Li's left palm and fingers, and multiple bruises on his upper body. Li's parents have gone to the kindergarten and education department several times to negotiate and handle this matter, but the kindergarten and the competent department have blindly shirked their responsibility. However, Li's parents have filed a lawsuit on behalf of Li to claim compensation.

 

In this case, as Li is a person without civil capacity, when the kindergarten claims not to bear responsibility, it should provide evidence to prove that it is not at fault. As long as the kindergarten cannot prove that it is not at fault, it is presumed that the kindergarten has fault. However, Li's guardian failed to prevent him from playing in a venue with safety hazards in a timely manner, which resulted in certain mistakes. Therefore, the responsibility of the kindergarten can be appropriately reduced. Finally, the court ruled that the guardian and kindergarten each bear 50% of the responsibility.

3、 Children locked in the car

On May 19th, two young children in Yangjiang, Guangdong were locked in their car and had already developed dehydration symptoms under high temperatures. Fortunately, Mr. Zhang, a passerby, extended a helping hand and smashed the car window to rescue the child.

 

In a high-temperature and enclosed carriage, it only takes fifteen minutes to cause fatal brain or kidney damage to the occupants. When the body temperature of the occupants reaches 40 ℃, symptoms of visceral arrest may occur. When the body temperature reaches 42 ℃, the occupants may die. Parents who lock their children in the car out of convenience may have set a reminder for their children.

 

We suggest that children should not be locked in the car alone, and that they should be taught some life-saving methods when trapped in the car, such as opening the door from the car (using a window breaker, unlocking buttons), turning on dual flashing lights, honking the horn, tapping the car window for help, and so on.

 

For accidents that occur when children are locked in a car, the cause is mostly due to the negligence of the guardian. Therefore, such cases are generally the sole responsibility of the guardian. However, since the person responsible is also a victim, the court generally does not hold the person responsible accountable. However, in severe circumstances, the judicial authorities will still hold the person responsible for civil or even criminal responsibility.

 

In addition, the behavior of Mr. Zhang, a passerby, smashing a car window can be considered an emergency evacuation behavior. Emergency avoidance refers to the act of reluctantly taking measures to protect the legitimate interests of the lesser party in order to protect the public interest, personal and other rights of oneself or others from ongoing danger, in order to protect the greater legitimate rights and interests. In the case of emergency avoidance established, the perpetrator is not responsible for the damage caused by the act.

 

4、 High altitude fall

Recently, Ms. Wang from Suqian locked her 7-year-old grandson Xiaochen at home alone before going to work. Xiaochen accidentally fell from the 5th floor while playing by the window. Fortunately, the soil near it rained the day before was soft, and Xiaochen was not a big problem. But this fortunate occurrence is only a minority.

 

According to the World Report on Child Injury Prevention, over 80% of falls among people aged 1 to 4 occur through windows or balconies. Due to the negligence of the guardian, busy with other affairs or leaving the child alone at home, there is insufficient supervision, and the child lacks reasonable awareness of preventing high-altitude falls, ultimately leading to tragedy. High altitude falling cases require more attention from parents.

 

Recently, the case of a child falling from a building in Chongqing attracted attention. This case is a relatively special case of a child falling from a building. The father of the child intentionally threw the child from the 15th floor out of homicide. Therefore, the Chongqing child falling case is a serious criminal case rather than an accident, and even the father of the child still bears corresponding legal responsibility.

 

During summer vacation, in addition to children's own rights being easily infringed upon, some improper behaviors of children may also cause danger.

 

For example, on January 13, 2014, a fire case occurred in a community in Xiamen due to children playing with fire. Ms. Zhang, the mother of the later child, sued and demanded that the property management take responsibility, stating that the property management company allowed the owners to park indiscriminately, seriously blocking the fire exits, causing the fire trucks to be unable to enter the community on the day of the fire, seriously delaying rescue time. In addition, due to the inability of the fire hydrant to discharge water, the fire losses were expanded. Finally, the court ruled that Ms. Zhang was held 50% responsible for her inadequate guardianship, and the property management company was held 50% responsible for any negligence in fire management.

 

Playing with fire by children is inherently dangerous and can easily cause personal and property injuries. In the field of tort liability, both parents and property management are generally responsible, except for those who can prove that the property management company has fulfilled corresponding safety management obligations.

 

From the above cases, we can find that guardians usually bear a heavy and comprehensive guardianship responsibility, while other relevant places, institutions, etc. bear certain responsibilities that cannot be exempted.

 

Recently, in Changzhou, Jiangsu, 60 year old Li had dinner with his 8-year-old granddaughter and three best friends, and then went to KTV to sing until the early morning. Three hours later, with a sense of luck, Li felt that he had woken up from drinking and drove his granddaughter home. However, he encountered a traffic police officer investigating drunk driving. After testing, Li's blood alcohol content reached 110mg/100ml, meeting the standard for drunk driving. At present, Li has been taken to the hospital for blood testing and will be punished by law. Although many netizens have commented that Li is a "trendy grandmother" after this news, many have also condemned Li's irresponsible behavior. As the child's grandmother, Li serves as the child's guardian during the absence of his parents. Assuming that the child encounters an accident as a result, Li will also have an undeniable responsibility for guardianship.

 

Article 1188 (1) of the Civil Code of the People's Republic of China (hereinafter referred to as the "Civil Code") stipulates: "If a person without civil capacity or with limited civil capacity causes damage to others, the guardian shall bear the liability for infringement. If the guardian fulfills the duty of guardianship, their liability for infringement can be reduced." This legal provision establishes the guardian's liability in China.

 

Guardian liability refers to the tort liability that a guardian should bear for the damage caused to others by a person under their guardianship who has no civil capacity or limited civil capacity.

 

The duty of a guardian is to act on behalf of the ward in carrying out civil legal acts, protecting the personal rights, property rights, and other legitimate rights and interests of the ward.

The characteristics of guardianship responsibility include:

 

1. Take responsibility for actions (actions) that cause harm to others. The guardian's responsibility belongs to a typical substitute responsibility, which means that the guardian bears compensation responsibility for harm caused by others (the ward).

 

2. No fault liability. The principle of liability attribution for guardians in our country is no fault liability, and the assumption of responsibility by guardians is not necessarily based on their fault.

 

3. Supplementary responsibilities. Article 1188 (2) of the Civil Code stipulates that if a person with property but no capacity for civil conduct or a person with limited capacity for civil conduct causes damage to others, compensation fees shall be paid from their own property.

 

Although the child is on vacation, it is safe not to take a summer break. The above lists some situations that may endanger children's safety, but due to the more diverse reality, specific analysis is needed. However, in any case, it is the responsibility of guardians to protect children's safety. May the children have a safe and happy summer vacation.