从优士丁尼罗马法到近现代民法,大多数民法典对行为能力欠缺者及监护人都采用过错责任原则。由于我国当时与前苏联的友好关系,从上个世纪50年代开始便借鉴了苏联模式对监护人采用了无过错责任原则。直至《民法通则》制定之时,在原来基础上加上了对行为能力欠缺者采取公平责任原则。新近施行的《侵权责任法》第三十二条延续了《民法通则》第一百三十三条。解释论上,该条的第1款是主要条款,第二款是对第一款的补充说明。与被害人发生求偿关系的只有监护人,而被监护人则与监护人发生责任分担关系。前者为外部关系,后者为内部关系。在司法实践中,法院往往将行为能力欠缺者作为被告。确定了被告的侵权责任之后,然后再指出其责任应由其监护人承担。对行为能力欠缺者是否有财产、是否应从其财产中支付赔偿费用,也不予理会。 From Yuddingtini Roman law to modern civil law, most civil codes adopt the principle of fault liability for those who lack capacity and guardians. Due to the friendly relations between our country and the former Soviet Union at the time, we have borrowed the Soviet model from the 1950s to apply the principle of no-fault liability to guardians. Until the “General Principles of Civil Law” was formulated, the principle of fairness and responsibility for those who lack capacity was added. Article 32 of the recently implemented “Tort Liability Law” extends Article 133 of the “General Principles of Civil Law.” Explanatoryism, paragraph 1 of the article is the main article, paragraph 2 is the supplementary explanation of the first paragraph. The only relationship with the victim is the guardian, and the guardian and the guardian share responsibility. The former is external and the latter is internal. In judicial practice, the courts tend to use those who lack capacity to act as defendants. Having determined the defendant’s tort liability, she then states that her responsibility should be borne by her guardian. Whether or not persons with capacity to lack should have property and whether compensation should be paid out of their property should also be ignored.