The correlation of the civil status of minors and of their legal representatives in contractual and tort obligations (problems of theory and practice)

The article is devoted to the topical problems of correlation of contractual and tort liability of minors, their legal representatives. The aim of the study is to identify gaps and contradictions in the legislation, sustainable trends in the law enforcement practice on the problems of the responsibility of minors and their legal representatives and to develop practical recommendations for improving the current legislation taking into account the stable trends in judicial practice. In the study methods of system and comparative legal analysis have been used; laws and by-laws of civil and family legislation have been compared. The article justifies the thesis that in contractual obligations parents, adoptive parents, guardians and trustees of minors perform the role of their legal representatives only when transactions are made at the expense of the property of minors, since only in these cases they compensate for the lack of legal capacity of the participants in the transaction. In other cases, they fulfill parental responsibilities for bringing up underage children. In tort obligations, the property liability of legal representatives of minors is due to the fact that, in fact and legally, adults are responsible for the proper upbringing of minors and supervision over them. Therefore, legal representatives are responsible for the harm inflicted by minors exclusively with their own property, even if minor harm-doers have the necessary funds. The subsidiary liability of legal representatives for harm caused by minors aged 14 to 18 follows the same logic. A judgment is made about the moral wrong of subsidiary liability of legal representatives. In the author's opinion, this liability must be shared, since if a juvenile has sufficient means to compensate for harm, parents and persons substituting them, guilty of improper supervision and upbringing of minors and creating conditions for their harmful behavior, are completely exempt from liability. The author proposes to fix in law a provision, developed by judicial practice, that provides for the possibility to release a separately living parent from compensating for harm caused by a minor or juvenile child, if the parent's inability to participate in upbringing is caused by the actions of the other parent or by other valid reasons. The explanation of the Supreme Court of the Russian Federation on this issue is essentially a new norm. The author comes to a conclusion about the need to improve civil legislation regulating the participation of legal representatives of minors in both contractual and tort obligations.

Keywords

Authors

References