On The Compensation For Infringement Damage

Composed by two parts of “crime formation” and "penalty" as criminal law, tort lawshould also be of “tort liability formation" and" damages ", which is not only to solve whoshould bear the liability issues but also to clarify how to bear. However, the existinglegislation and theoretical research had mostly focused on liability formation, provisions andresearch of damages is far from in-depth. Existing legislation only contains distributedprovisions in respect of compensation for moral damage, personal injury compensation andpunitive damages,affected by this, theorists had just scattered explore mental damages, deathdamages and punitive damages, while systematic damages theory has yet to be constructed,and the basic theoretical research on the subject is scarce. In accordance with the "damage andremediable damage-Money evaluation of damage-loss-sharing-compensation principle”,the text conducted a systematic study on the basic theory of damages and proposed improvedtargeted recommendations to provide intellectual support for practice.In addition to the preface and conclusion, the text was divided into four chapters:Chapter1: Damage and remediable damage theory. This chapter was divided into two,the "damage" and "remediable damage”, designed to clarify what is damage? What damagecan get relief? For what is the damage, which is the foundation damages issues, there hadbeen no unified cognition from Ancient Rome to the common law period in Germany(19thcentury),and there was only distinctions from the victim perspective which was between theinterests of the general interests and special interests, direct interests and indirect interests,and this corresponds to the the doctrine of limitation of damages, which took general damagesand direct damages as principle. After the experience of Molineas controversy, the unifiedmargin principle raised by Mommsen and its the corresponding complete compensationprinciple have gradually been accepted, both of which form the modern concept of damages.In the face of the flaws of the margin principle, later scholars have proposed organizationprinciple and its specific corresponding in the areas of personalinju8ry compensation: loss oflabor ability principle, casualties damage principle, as well as standardized damage principle.One hand, for cognition of damage ontology theory, standardized damage principle is moredesirable, because the identification of damage is a normative evaluation process,and thedamage in the Tort Liability Act is a post-processing of legal facts, rather than the facts of nature, while the margin principle and the organization principle has just been integrated intothe specific criteria of the trade-offs value. After the clear cognitive of damage ontology,many problems solved. The unified damage theory, on the other hand, serves the principle ofcomplete compensation for its negligence of the difference among the specific types ofdamage. Besides, to build a fair system of damages, needed by means of scientific typeddistinction of damage.To clear what damage can get relief after what is damage, you can get on this, an act willnot only damage the direct victims of the damage, but also the indirect victims; Not only willcause direct damage to the victims, but will also cause extended follow-up damage,“remediable damage” aims to construct a clear judgment path of remediable damage:1.distinguish the responsibility for the establishment and range of responsibility, the former is tosolve whether the infringer is responsible for the damage of the victim, and the latter is tosolve the infringer should be liable to what damage responding to the former issues.2on thejudgment for the establishment of the responsibility, a distinction should be made between thedamage of the direct victims and of the indirect victims; on the scope of responsibility, adistinction should be made between "realistic damage–effect of damage-Second realisticdamage”.3. To construction the judgment path of remediable damage, there must beco-ordination considerations of the object of protection, constitution elements and causality.For this:1.Whether the damage of direct victim is available to relieve, should be solve by theprotected object. the civil rights in article2of the Tort Liability Act should be understood as:first, for the rights, should not be simply divided to absolute and relevant rights, while a"Three elements" and "Four Elements” dispute about tort liability constitution also stems fromthis: the absolute rights to have the right rank, against life, body, freedom and basic moralrights and property rights, as long as the fault of the perpetrator who has caused any damage,should bear the responsibility, no longer demanding independence illegal elements. To privacy,reputation, honor and intangible property rights, the fault even intentional damage does notnecessarily constitute infringement, while unlawful act judgment is still needed. Second, therights beside interests, include potential right-like interests after legislation and incapablytyped technical obstructive interests. Correspondingly, whether the damages caused by theinfringement of the former is eligible for relief, should be judged by whether the people takeas a protected interest; on the latter, the judging standard should be violation of the relevantlaws. In addition, general interests in addition to interest, should get relief while violation of morals behavior.2. Causality is to solve the problem whether indirect victim of the damageshould get relief. Among the three categories of damage: a not really indirect victim, shapingindirect victim and narrowly indirect victim, only the third category need to be explored. Inprinciple, should only the damage suffered by the victims of kinship with the direct victims,be granted relief. In this connection, the concept of the loss of pure economic interests ismeaningless to solve the coverage, and we should judge whether it’s the damage of directvictim or indirect victims, and decide whether to grant relief.3.For the scope of responsibility,it is the same that should be solved by the causal relationship. The specific loss suffered bythe victim for the first damage should take appropriate causality as judgment standard; whilefor the second damage, should take causal relationship of the risk of living.Chapter2: Evaluation theory of damage. After determine a damage should be relieved, itcomes to how to calculate the amount of losses, that is to give money evaluation of thedamage. To the relief in infringement:1. Should clarify the appliance of relationship betweenrestoration and the way of responsibility to compensation for loss. The two are not entirelydifferent, as purposes of payment rather than form of payment should be judgment criteria; ifaimed at the interests of the subject to be completed, it belongs to restoration; if the paymenttransaction value is only intended to reducing, it belongs to compensation for losses, andcompensation for repair belongs to the restitution of relief, rather than compensation for lossrelief. For this reason, in infringement of subject,the restoration doctrine should be adopted,as compensation for loss can only reply of the transaction of value, while cannot realize thecomplete interests of the matter.2. Restoration: the debts of the repairs should be adopted tocalculation principle, instead of the actual repair principle; calculation method in respect ofthe cost of repair should be adopted as subjective specific one; the TM problem when repair,in respect of the principle of based on the prohibition of forced profit,and generally notdeductible value-added benefits; technical devaluation and that of transaction persists afterrepair, the infringer should pay the margin, and the devaluation of the trading loss ofcompensation to the victim should not be the premise for sale is in infringed subject.3. as tothe devaluation of value of the infringed articles: First, shall adopt suitable calculation methodaccording to the species of infringement, such as indefinite thing, a particular matter, thereconstruction matter, scheduled matter;and the objective calculation rules in Article19of"Tort Liability Act" should not be provided as peremptory norms, but rather to make itrandom supplementary specification, that is to say, before victim prove the special value of objects, to calculate in accordance with objective market price. Second, the reference time forthe purpose of calculating the loss of property, Article19of "Tort Liability Act” takes whenthe loss occurred as the reference time, confused the" original state "and" due state ", whichdoes not match the philosophy of filling with the loss and practice. While infringed price hasno significant fluctuations, people should follow the regulations; while it has significantfluctuations, people should determine the reasonable time in accordance to principle of fillingthe loss. Third, to calculate the location of benchmarks for property damage, shall prevail theplace where loss occurred.4. in addition to compensation for the value reduction of infringedmatter, the infringer should also compensate the general available loss of benefits such as rentfee, operating income, for these, we should improve the current legislation on compensationfor the lack of compensation of available interest.On the infringement of the rights and interests of personality: While evaluating the lossescaused by the infringement of personality rights and interests, first, a clear understanding ofpersonality interests behind the interests is needed, the existing theory biased definespersonality interests mainly as the spiritual interests, however, personality interests is thecomplex of material body exists, spiritual interests and property interests. Take it as a standard,the personality interests can be divided into containing material existence, spiritual interestsand personality of the property interests of non-tradable, containing spiritual interests andtradable property interests of the personality interests, containing spiritual interests andexternal property interests the personality of interest, containing only the spiritual interests ofpersonality interests, not containing specific spiritual interests or property interests of thepersonality rights. Correspondingly, in the infringement of the first class of personalityinterests, in addition to the compensation of the inherent interest, and conciliation of thespiritual pain, its core is the compensation for the loss of the property interests of non-tradable,is the loss of escaping benefits. Escaping interests is the expectations of future interest, so theprecise individual calculation is only nonsense, and calculation should be typed, in this wayalso to avoid the encounter ethical questioning. On the infringement of the second type ofpersonality rights and interests, its core is compensation for loss of tradable property interest,calculated on the basis of user license fees. As for infringement of a third type of personalityinterests, its core is a compensation for the loss of external property interests, made witha contingent due to the loss of the external property can only be left to judge’s discretionaryaccording to similar situation. On the infringement of the fourth class of personality interests, there is only the possibility of compensation for moral damages. As for infringement of fifthclass of personality interests, it does not cause direct damage.In addition, because the Infringement is extensive, sporadic, unpredictable, it will resultin the victim suffered the burden of proof plight. At this time, infringer should not getliberation from tort liability just because the victim can not prove his specific damage and loss,but judges should be authorized and enforced to identify specific damage and to makediscretionary compensation combining with circumstantial evidence and the experience ofdaily life.Chapter3: Loss-sharing theory. After determining the amount of loss, in turn we need toconsider the loss-sharing between the infringer and the infringed. Existing theoriesrespectively explore negligence counterbalance and profit and loss balance from the point ofview of the results and behavior, in addition, should also explore the impact of abnormalfactors due to the loss-sharing for the injured party from the perspective of the subject. As forprofit or loss balance, including: First, against the profit and loss balance of the traditionalsense, that is to say, the victim suffered damage also received interests, which respectivelyundergoes three stages: homologous principle, appropriate causal relationship principle,appropriate causality fix. Above all, homologous principle should be taken, because thebenefit of the non-tort benefit from the infringer is of no legitimacy. Homologous wasreplaced by appropriate causality, because jurists believed that infringement of their behaviorexisted appropriate causality liable for any loss, the same should speak on their behavior hasconsiderable causality of benefit proposition to make the profit and loss balance. However, itignores the differences between the two kind of causality in a simple reasoning, the former isthe judgment of two negative association, the latter is the judgment of the negative andpositive values associated, which will lead to the benefit from which should not makefrom the benefit of the infringer. Second, the adjust expansion of the profit and loss. One,whether can victims in the same time to obtain the right to claim damages and insurance,social security benefits, thereon to the nature and purpose of the payment as a recognizedstandard criteria, with the same nature benefits mutually exclusive, the different nature can beboth had. Second, that payment of illegal reasons breaks through the principle of prohibitionenrichment to the association. Speaking to negligence counterbalance: negligencecounterbalance contains fault offset, the victim deliberately does not of course absolve theresponsibility of the infringer, not because of the infringer intent or gross negligence without exemption, but because the victim deliberately and without interrupting the causalrelationship. Second, negligence even applies not at fault and the damage to the victimcausality based. Contributory negligence, including the following three scenarios: First, priorcontributory negligence, that is due to the behavior of the victim before the damage occurredmay make it a share of loss, such as provocation. Negligence counterbalance in the second,things, that is caused due to the wrongful act of the victim when the damage occurred in itsloss-sharing. In this regard, both theories to things afterwards no fault to distinguish betweenvictim’s fault contributing to the damage occurred and that leading to the expansion of thedamage is wrong. Negligence counterbalance things may fault led to the expansion of the loss,such as the victims were not wearing helmets. Negligence counterbalance in the matter,including the two major categories of case, one class as a Joint infringement fault offset, itsvictims fault behavior and its damage have a causal relationship, the other one is the victimillegality offset between their behavior and damage no causal relationship, based on itsillegality risks and prevention of illegal, the negligence counterbalance rules would beapplicable if the victim didn’t violate regulations, but driving without a license, that shouldbear the consequences of negligence counterbalance. Third, afterward negligencecounterbalance, leads to loss of the expansion behavior of the damage occurred. Third, faultoffset of loss sharing, a distinction should be made between the two situations andconsiderations similar to the negligence counterbalance and the subsequent joint tortnegligence counterbalance on things, should take into account to examine the reasons for thefault of the force and the parties, fault offset, and things in advance of negligencecounterbalance in the illegal should comprehensive test the fault of the parties of the, illegality,risk. Fourth, it is no fault liability of fault offset: First, should still be applicable fault offset,but its should be limited: on the one hand, in the abnormally dangerous no-fault liability,negligence counterbalance excludes general negligence; On the other hand, based on no-faultliability of the insured, we should limitedly exclude the minors, the elderly for contributorynegligence. Second, when the responsible persons are innocent, the victim’s fault, the reasonsforce and the risk of the behavior of the responsible responsibility should be compared alongwith loss-sharing; when the responsible should take responsibility, it should compare thevictim’s fault, the reasons force, and the risk of the behavior of the responsible responsibility.Third, applicable and there is the risk of loss if the conduct of the victim and the infringer’sbehavior bear no fault of dangerous responsibility sharing. As for the injured party’s abnormal factors, including physical abnormalities fragility and abnormal expensive value, the formerone means victims of special physical, tort generally does not cause serious damage, only dueto the infringement of the specific victim or infringement matter, just produce unusually highlosses, produce still it has requested the infringer assume full liability, whether the victimshould be part of the damage on the abnormal share loss. First, victims of special physical,France, Germany, the common law think " to infringe special physical person, should not berequired the same as healthy people" and "infringer must accept the victim’s status quo" asexcuses, and do not think it requires victims to share responsibility. To Germany beneath this,there are quite a causal relationship, not the specific reasons for limiting freedom of victimbehavior and general life risk theory. Early France and Japan, take the proportion of causalrelations, contributory negligence by analogy, management responsibility, send and degree,and force majeure, ask the victim to burden that part of the loss caused by the special physical.In this connection, in principle, people should ask the victim to loss-sharing because of thepractice in Japan of its establishment on the basis of the implementation of the same behaviorof the perpetrator, should bear equal responsibility "merely achieve fairness between thepossible perpetrators”, failed between the offender and the victim, the victim and the potentialvictim fair requirements already due to the victims of this unfortunate loss-sharing, althoughthe victim is seriously unfair. But knowing their own special physical preparedness andindolent in the victim, and in the public space and the others bring abnormal risk, loss-sharing.Second, on cases of unusually expensive infringement of the subject, they are very similar tothe special victim’s situations, which also increased part of the loss against party particularityplaced abnormally expensive subject of public space to others to bring abnormal loss shouldbear the abnormal risk of losses. Second, the injured party hormone common is abnormal risk.Shall be liable for damage caused by their behavior to others as fault liability perpetrator fault,the fault should be shared with the victim; risk the responsibility also unable includingbehavioral bring abnormal risk shall be liable for the resulting damage caused to others.Along with the victim to bring abnormal risk, he should share part of the losses. Based on thetheory of risk responsibility, knowing their special physical with indolent preparedness, andvictims living in public spaces, or abnormally expensive subject matter in the public space,victims should share the unusual part of the loss.Chapter4: Compensation principle. Damages should fill in the total loss of the infringed,and make it back to the state as tort has never happened before, as that is an intuitive aspiration. Its course is correct, but too simple. In addition to filling the loss, the decision ofshared loss will be integrated with legal considerations of the function, such as behaviorguidelines, value of the balance of interests and risk allocation. In face of the new issuesraised with the development of modern society, tort liability law should be established on theprinciple of complete compensation, as well as incomplete compensation to ease down theprinciple, and upward two-way reply which deprived of the infringer’s benefit, and takenpunitive compensation as exceptional, thus modern damage compensation principle has beenconstructed. In addition to punitive damages, on the one hand, like a contract strictly theprinciples of fundamental contract law, as should be the exception circumstances, the need toestablish the principle of changed circumstances, in normal circumstances the system is justcompletely the principle of compensation, but in special cases, will likely result in significantunfair. To achieve the ultimate concern of the people to overcome the principle of fullcompensation for the rigid spur behavior and avoid responsibility for the severity of theimbalance should ease completely the principle of compensation, added a "livelihood reduceit fair to reduce it" rule. On the other hand, in the face of the endless stream of infringerbenefit greater than the benefit infringement infringer loss, stick to the principle of loss of fillwill encounter "so lawless benefit from the anti-moral crisis. The traditional loss to fill thesaid the reinstated, did not make the parties to reply to as tort not occurred due only to theinfringer is unidirectional Reply to loss less state, but did not make the infringer restored tolike violations did not occur when the state. For this reason, in order to really be reinstatedshould unidirectional Reply undisturbed towards bidirectional reinstated, giving the victim torequest the right to return the income compensation infringer back to its original state.According to the author’s humble opinion, innovations of this article include:1.Preliminary construct the framework of the theory of damages.2Come up with mitigation ofthe principle of complete compensation, facing rigid understanding of the theoretical circleson the principle of complete compensation.3. In addition to existing theories focus only onpersonal injury compensation relief, study systematically the relief of infringing matters.4.Summed up the consequent loss-sharing factor of abnormal injured party, beside negligencecounterbalance and profit and loss balance.5. Construct a judgment path of remediabledamage.6. Deconstruction, typed and calculation of Personality interests.7. Historic combingof damage.8. Clarify contributory negligence is not a causal relationship between the conductand the damage to victims fault as a precondition, which is divided into before, during and after the fault offset, and allocate the loss according to different situations about risk,illegality, force of reason and fault.9. Put forward the tentative concept of two-way reply.