[Direct answer]According to Article 1188 of the Civil Code of the People's Republic of China, if a person without capacity for civil conduct causes damage to others, the guardian shall bear tort liability; if the guardian has fulfilled his or her guardianship duties, the liability may be mitigated but not exempted; if the perpetrator has property, the compensation shall be paid from his or her own property first, and the insufficient part shall be compensated by the guardian. Common situations are as follows: if a child under the age of eight or a person with mental illness or intellectual disability who cannot recognize his or her own actions injures others, the guardian shall be claimed for compensation; if the guardian delegates the guardianship duties to others, the guardian shall still bear the responsibility in principle, and the trustee shall bear corresponding liability if there is fault (Article 1189); if the victim is injured in an educational institution, the perpetrator shall bear the responsibility, and the educational institution shall bear corresponding supplementary liability if it fails to fulfill its management duties (Article 1201). After the incident, the victim should immediately report to the police, fix the evidence by having a medical examination, and if the compensation negotiation fails, the victim can sue the perpetrator. The victim can first seek help from a lawyer or a legal aid organization for legal advice and assistance in litigation. 依据《中华人民共和国民法典》第一千一百八十八条规定，无民事行为能力人造成他人损害的，由其监护人承担侵权责任；监护人尽到监护职责的，可以减轻但不能免除责任；加害人本人有财产的，先从本人财产中支付赔偿费用，不足部分由监护人赔偿。常见情形的处理：不满八周岁的儿童或不能辨认自己行为的精神病人、智力障碍者打伤他人的，找其监护人索赔；监护人将监护职责委托给他人的，原则上仍由监护人担责，受托人有过错的承担相应责任（第一千一百八十九条）；在教育机构内被打伤的，加害方担责，教育机构未尽管理职责的承担相应的补充责任（第一千二百零一条）。事发后应立即报警、验伤固定证据，赔偿协商不成可起诉，可先通过调解解决。Legal services for personal injury and medical disputesEvaluate the plan.

I. Problem Background and Typical Scenarios

When a person with no civil capacity causes harm to others, they are the type of responsible parties most easily misunderstood in personal injury cases. Typical scenarios include: children under the age of eight fighting over toys in a residential playground and knocking down their peers, resulting in fractures or bruises; kindergarten and elementary school students injuring classmates; adults with mental illness or intellectual disabilities acting violently and causing harm; and children under the care of grandparents injuring neighbors. Victims often face three major dilemmas: the mistaken belief that "it's pointless to sue whether the child or patient wins or loses"; parents shifting blame by saying "it's not my child"; and uncertainty about whether schools or childcare institutions also bear responsibility. In fact, the law has already assigned the obligation of compensation to guardians through the guardianship liability system. The disputes often focus on who the guardian is, whether the guardian can be exempted from liability, and whether third parties are involved in the liability.

II. Key points of contention

  • How to determine a guardian: According to Article 27 of the Civil Code of the People's Republic of China, the guardians of minors shall be their parents. Divorce of parents does not exempt either party from their responsibilities. According to Article 28, adults with no capacity for civil conduct shall be guardians in the order of their spouses, parents, and children. However, there are often disputes over the determination of guardians between the parties involved.
  • The defense of reduced liability for "fulfilling the duty of guardianship": If the guardian claims that he/she has tried his/her best to discipline the child and the incident happened suddenly and could not be prevented, the guardian can only reduce the proportion of liability and will not be exempted from liability. The court will determine the liability proportion based on the child's age, behavioral precursors, and care situation.
  • The responsibilities of educational institutions and custodians: If an injury occurs in a kindergarten, school, or during childcare, or if a child is entrusted to the care of others for a long time, the corresponding responsibilities and supplementary responsibilities of the custodian and the institution shall be determined in accordance with Articles 1189 and 1201 of the Civil Code.

III. Professional analysis by Henglue Lawyers

When handling such cases, Henglue Law Firm first clarifies the nature of liability: guardian's liability is a fault-free substitute liability, which does not require the guardian to have specific faults as a prerequisite for compensation. "The child is too young and doesn't understand things" and "the parents weren't present" are not excuses for exemption from liability, which is precisely the purpose of Article 1188 of the Civil Code to protect victims. In terms of litigation subjects, the perpetrator is the defendant, and his guardian is listed as the legal representative and at the same time the subject of liability. The judgment directly states that the guardian shall bear the liability for compensation, so as to avoid unclear subjects in the execution stage. If the perpetrator has property, such as gifts received by minors, lucky money, and inheritance, the compensation shall be paid from his property first, and the insufficient part shall be supplemented by the guardian. These two points cannot be confused. If the perpetrator is an adult with no or limited capacity for civil conduct, special procedures can be applied to declare and appoint a guardian, thereby legally fixing the subject of liability. If the incident occurs in an educational institution, the victim can simultaneously claim tort liability from the perpetrator's guardian and require the educational institution that failed to fulfill its management duties to bear corresponding supplementary liability within the scope of its fault; if the damage occurs during the period of entrusting others to care for the child, the entrusted person shall bear corresponding liability if he/she is at fault. When dealing with disputes over guardianship and upbringing within the family, the parties can resort to legal means to resolve them.Divorce litigation and family dispute servicesCollaborative handling; if the other party refuses to perform the obligation after the judgment, you can refer to the following methods for enforcement.Creditor-debtor relations and enforcement case servicesAdvance the implementation.

IV. Practical suggestions and legal basis

At the legal basis level: Article 1188 of the Civil Code of the People's Republic of China (effective January 1, 2021) establishes the guardian's liability and the rule of prior payment of the perpetrator's property; Article 1189 stipulates the allocation of responsibilities in the case of entrusted care; Articles 27 and 28 determine the scope and order of guardians; Article 1201 stipulates the corresponding supplementary liability of educational institutions for third-party infringements; Article 1179 stipulates personal injury compensation items such as medical expenses, nursing fees, and loss of income; Article 1173 stipulates that the injured party may reduce the perpetrator's liability if he/she is at fault for the occurrence of the damage. At the practical advice level: Report the incident to the police immediately, and the police's investigation records and interrogation transcripts are the core evidence for reconstructing the process; Seek medical treatment on the same day and keep the medical records, diagnosis certificates, and receipts intact; Apply for a disability appraisal after the treatment of serious injuries; Collect surveillance footage of the incident and information about witnesses; First, negotiate compensation with the guardian in writing; If no agreement is reached, sue as soon as possible, and include the perpetrator and guardian in the litigation framework. If necessary, also claim against educational institutions and entrusted caregivers.

5. Henglu Law Firm's Reminder

The most common issues that are easily overlooked in such cases are evidence collection and awareness of the statute of limitations. Victims' families are often misled by emotional arguments like "the child is still young" or "we're all neighbors," and end up agreeing to low compensation or no compensation at all. Later, when the victim's condition worsens, they find themselves in a passive position when seeking compensation. The correct approach is to first secure evidence, clarify the losses, and then negotiate a settlement. Whether to reach an agreement or not should be a bargaining chip rather than a mandatory obligation. The statute of limitations for litigation is three years (Article 188 of the Civil Code of the People's Republic of China), starting from the date when the victim becomes aware of the harm and the obligee's identity. For guardians, this case also highlights a reverse risk: allowing children to engage in dangerous behaviors or neglecting to care for sick family members will ultimately result in the guardian having to use their own assets to compensate. It is necessary to purchase guardian liability insurance and strengthen daily care as risk management measures. For case evaluations, please contact us viaBeijing Henglu Law FirmMake an appointment for a consultation.

Q1: If a child injures someone, who should the parents, who have divorced, compensate to?

Find both parents. According to Article 27 of the Civil Code of the People's Republic of China, parents are the guardians of their minor children. Divorce does not change the guardianship status, nor does it exempt either party from the liability for compensation for the infringements committed by the guardianship object; the party who does not live with the child cannot refuse to assume responsibility on the grounds of "not taking care of the child". In practice, when the victim sues, both parents can be listed as defendants, and the court may order them to jointly bear the liability for compensation; after one party makes the payment first, the issue of how to share the liability between them is an internal matter and does not affect their obligation to fully compensate the victim. If the party refuses to perform the obligation, the victim can apply for forced execution.

Q2: The guardian said I've already been very strict with him/her. Can I not pay the compensation?

There is no exemption from liability, only the possibility of seeking a reduction in liability. According to Article 118 of the Civil Code of the People's Republic of China, if the guardian fulfills his or her guardianship duties, the guardian's tort liability may be reduced—the law uses the term "reduced" rather than "exempted". Whether the guardian has fulfilled his or her guardianship duties shall be determined by the court based on the age and cognitive status of the victim, the location and time of the incident, whether there have been similar acts before, and whether the guardian was present at the scene, etc. The burden of proof lies with the guardian. Even if the reduction in liability is established, the guardian shall still compensate the victim for his or her reasonable losses in proportion to the reduced liability. For the victim, the key is to provide solid evidence of his or her losses.

Q3: If the child who hit someone has his own lucky money, should we use the child's money to make the compensation first?

First, the compensation shall be paid from the person's own property. According to Article 1188 of the Civil Code of the People's Republic of China, if a person without capacity for civil conduct or a person with limited capacity for civil conduct causes damage to others, and the person has property, the compensation shall be paid from the person's own property first. If the compensation is insufficient, the guardian shall compensate for the shortage. The property that can be used for payment includes gifts received by minors, inheritance, and other personal property; the lucky money managed by parents still belongs to the children's personal property in law and can be used for compensation first. However, in practice, children's property is usually limited, and the shortage part shall be made up by the guardian. Therefore, when claiming compensation, there is no need to worry about the order of payment. It is enough to directly request the guardian to bear the responsibility, and the court will deal with it together.

Q4: If a child is injured by a classmate at school, does the school need to compensate them?

It's divided into two layers. The liability for compensation shall first be borne by the guardian of the party who committed the assault; at the same time, according to Article 1201 of the Civil Code of the People's Republic of China, if a person with no capacity for civil conduct suffers personal injury from a person outside the education institution during the period of studying and living in kindergartens and schools, the third party shall bear the tort liability. If the kindergartens and schools fail to fulfill their management duties, they shall bear corresponding supplementary liability, and may seek recourse from the third party after assuming the liability. Whether the school has fulfilled its management duties shall be determined by whether there are teachers present to supervise during the incident, whether the relevant regulations have been implemented, and whether prompt assistance has been provided after the incident. The victim may sue both the guardian of the perpetrator and the school together, and the court shall apportion the liability. The portion of the liability borne by the school shall be limited to the extent of its fault.

Q5: If I am injured by a mental patient, who should I claim compensation from?

Claim compensation from their guardians. Adults who are unable to recognize their own actions are considered incapacitated individuals. According to Article 1188 of the Civil Code of the People's Republic of China, the guardian shall bear tort liability. The scope of guardianship is determined in accordance with Article 28, with the spouse being the first priority, followed by parents, children, etc. If the other party has not been declared incapacitated or the guardian's identity is unclear, the court may be applied to determine the person's capacity for action and appoint a guardian, after which the liable party for compensation shall be determined accordingly; if the guardian delegates the duty of care to a medical institution or other individuals, the guardian shall still bear responsibility in principle, and the delegate shall bear corresponding liability if there is fault. When an incident occurs, it is necessary to call the police to control the risk first, and then seek compensation through civil litigation. It is strictly prohibited to take excessive measures on one's own initiative.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Personal injury legal services·Beijing Henglue Law Firm