法定代理人之侵權責任與免責抗辯──以臺灣高等法院103年度上更（一）字第39號民事判決為例

An Analysis of Guardians' Tortious Liabilities

法定代理人之侵權責任，於民法第187條中已有明文。惟該責任類型，究屬「自己行為責任」或是「他人行為責任」，似不能自法條文義中清晰得知，因此法定代理人應負責之緣由，尚值深究。另因現今社會結構變遷，家庭型態大為轉變，無行為能力人或限制行為能力人之法定代理人，實際上未必均為父母，較常見之情形反而為隔代教養，甚至可能是社會福利機構，該等法定代理人是否均有管教子女或受監護人之能耐，也未能一概而論。又在訴訟上，法定代理人須負民法第187條第2項免責抗辯之舉證責任，惟過去實務上之見解，多不肯認法定代理人之免責抗辯，而認為法定代理人應當對於無行為能力人或限制行為能力人有全面掌控之能力，否則其抗辯即屬無據，上述見解是否妥適，亦值進一步討論。

The Tortious Liabilities of the guardians of the person who has no capacity/limited capacity to make juridical acts and has wrongfully damaged the rights of another are clearly stated in Article 187 of the Civil Law. However, the type of the guardians' responsibility (and whether they are vicarious liabilities) do not seem to be clearly known by the meaning of the law. Therefore, the reason why guardians are responsible is worthy of discussion. In addition, due to the changes in the structure of modern society, the family pattern has changed greatly. Parents may not be the guardians of the person who has no capacity/limited in capacity. The more common situation is that those people are disciplined by their grandparents or social welfare agencies. Thus, there is a question about whether these grandparents or social welfare agencies have the ability to discipline their children or wards. Besides, in litigation, the guardians have the obligation of proof of Article 187 (2) of the defense. However, in the past, most of the court decisions have refused to acknowledge the defense of the guardians, and believe that the guardians should have full control of their kids. These court decisions are worthy of further discussion.