On The System Of Ascertaining Amount Of Compensation For Damages In Civil Procedure

In the civil action for damages, the plaintiff should claim and prove the occurrence of damage and the amount of compensation for damages firstly. But it is difficult for the party to prove the amount of compensation for damages in practice. To resolve this problem, there exists the system of ascertaining amount of compensation for damages in civil law countries and regions. System of ascertaining amount of compensation for damages needs court to take all circumstances into consideration and ascertain damage by its own impression. In China, the substantive law also begins to explore, but the procedural law lack for response in legislation. There are some different measures in judicial practice. This paper made use of analysis, comparison and linking theory with practice to prove related issues about the ascertaining amount of compensation for damages, expecting to clarify the controversy about the ascertaining amount of compensation for damages, supplement Chinese system of the ascertaining of amount of compensation for damages and improve civil procedure law in China.According to the writing logic of history, value, legislation, application, and improvement, the paper researches on the system of ascertaining amount of compensation for damages in civil procedure. Except the introductory section and conclusion, this paper expounds the details from five aspects.Introductory section determines the research object of this dissertation, reviews those literatures having analysized those issues, accounts for research methods, clarifies the basic concepts and introduces the paper structure. In conclusion, the paper summarizes the research and put forward with some methods and advices.Chapter 1 demonstrates the difficulty of ascertaining amount of compensation for damages is the inevitable product of formation and development of civil law coutries. In the perspective of Begriffsgeschichte, the research of the system of Delictum in ancient Rome, the wergeld of the Germanic law in Medieval Europe, the Renaissance of ancient Rome law, and the condification movement in modern Europe show that there has been different methods and rules of ascertaining amout of damages which, from era to era, has varying. Along with the decomposition of actio in ancient Rome law, the amount of damges have changed from the concrete to the abstract, until disappear from the private law with the movement of condification in Europe. However, the system of ascertaining amount of damges has been established by Code, and is spreaded by the ways of substantive and procedural legislative modelsChapter 2 discusses the legitimate basis of the system of ascertaining amout of damages. From the perspective of substantive justice, the system of ascertaining amout of damages not only avoids the application of burden of proof, but also realizes the justice of damage law. According to costs, the system can save direct costs, reduce error costs, increase moral cost and guarantee the interests of process. It also can transfer costs to a certain extent. As the supplement to loopholes in the law, the system can implement the function and value of damages law by balancing individual specific interests, the mass interests, the system interests and the social public interests in order. Therefore, the legitimate basis of this system includes substantive justice, benefit of litigation and balance of interests.Chapter 3 is to study the system of ascertaining amount of compensation for damages form the perspective of comparative law. There are legislative regulations about the ascertaining of amount of compensation for damages in civil law countries and regions. On the quality of the ascertaining amount of compensation for damages. It is regarded as free evaluation of evidence on the determination of fact and highlights the responsibility of party in Germany. It is regarded as discretion of evaluation of law and highlights the responsibility of judge in Italy. There is a changing process form free evaluation of evidence to discretion in Austria and Switzerland. And in Japan and Chinese Taiwan, there is a compromising standpoint of emphasizing the cooperative role of parties and judge. There are controversies among the point of lowering standard of proof, discretion and compromising in quality. Firstly starting from the definition of Damages, clarifying the relationship between damages and amount of compensation for damages, and concluding that the point of damages fact is more appropriate. Secondly analyzing the specific effects of determination of amount of compensation for damages and proving that stressing cooperative role of parties and judge is more appropriate. Thirdly back to the process of judgment, the above points are corresponding to the compromising point.Chapter 4 analyses scopes, requirements and effects about system of ascertaining amount of compensation for damages. The system of ascertaining amout of damages should be applied to positive damages and negative damages, and extendedly to complete and total claims, and better to other obligation. In applicable requirements, regarding the existence of damages and proving difficulty for amount of compensation for damages as elements. On specific effects, on one hand, abating the party’s responsibility of claim and producing evidence and strengthening the procedural protection of parties, on the other hand, expanding the judge’s discretion on standard of proof and investigation of evidence, Though the discretion to ascertaining damages is restricted to the principle of disposition and adversary, the courts may not investigate the proof requested by parties or investigate by a frugal and way if nevessary. Futhmore, the courts can ascertain damages by its own impression. Nevertheless, to protect the procedural right of parties and prevent surprising judgment, the courts should discolure its opinion above and discuss in fact and law with parties. Therefore the parties could obtain the opportunity to add and diminish claims.Chapter 5 puts forward with some advices to improve the system of ascertaining amount of compensation for damages in China. Chinese legislation has explored some regulations form the perspective of substantial law. However, there are some disadvantages of limiting applicable scope, ignoring the role of party and lying hard upon judge. To solve this problem, there existed four measures that ascertaining by free evaluation of evidence, assessing by discretion, adjudicating by burden of proof and mediation in practice. China ought to improve the civil procedural law by constructing the principle of free evaluation of evidence, the system of publicity of discretionary evaluation and ascertaining amount of compensation for damages.