Research On The Damage In Torts

Damage exits in the entire Torts system. Many civil wrongs, from constituting liability for tort to assuming liability for tort, from establishing the matter of law to calculating damages, only can be concluded through damage. In principle, the most necessary factor for the establishing liability for tort is the damage of victim. However, after the liability for tort established, it is still necessary to link damage to how much the infringer to compensate and what kind of damage the victim can appeal to be compensated. It is unnecessary to compensate if there is no damage exiting. From the points we mentioned above, Torts can be realized as starting from damage and ending in damage. Generally speaking, both parties in tort do not have any previous legal relation until damage happens and exits, then it will lead to the debt of tort liability. Therefore, it makes no difference whether the offence is accomplished or not accomplished, no damage is no responsibility. The existence of damage is the first and foremost condition for constituting liability for tort. Overall, the intensive study on the damage in torts helps us not only to understand the structure of damage, but also to definite the constitution of liability for tort and its sphere of application. Furthermore, it helps us to hold the scale for calculating damage.The content of the dissertation includes the following four chapters:Chapter one:The definition of damage---The foundation of damage in Torts. In this chapter, the author analyze factual meaning of damage and definite its legal scale. In addition, the author raises concept of damage in legal meaning and indicates the discussion on damage in Torts firstly, on the premise of evaluating the existing theories on damage entirely. Therefore, this chapter is the logical beginning of this paper.In the first place, it is necessary to definite the factual meaning for damage. The factual meaning for damage is what we consider as natural damage traditionally, which is an objective fact and is ubiquitous is our social life. The existence of this damage is the pre-condition for people to judge the interest legally and is the basis for people to definite the legal meaning for damage. The factual meaning for damage keeps an eye on the interest change which is suffered by the victim party practically. Also the factual meaning for damage pays close attention to the concrete change of damage after the damage accident happened, this meaning is an objective fact which only can be observed with physical methods instead of be influenced by people’s value judgment. However, as is known to everyone, since human originated, interest has been the focus for many fields, such as:politics, economy, culture, life and so on. Interest has been the goal, which is pursued by every human generation, and has connected with all human activities tightly and indiscerptibly. Thus, the factual meaning for damage should be definite as an anti-interest to the most extensive interest of human beings. The "anti-interest" here demonstrates a state which is reducing or reducing relatively, including the reducing positively and no increasing negatively. And the "interest" here is a concept in philosophy and covers the most extensive requirements of human beings.In the second place, we need to definite the legal meaning for damage. Definiting the legal meaning for damage, which is on the premise of analyzing the four existing and major theories, believes that the four theories demonstrate the concept of damage in four different points of view。Although each of the four theories has its advantages and disadvantages, they are still shade into each other from certain aspect. And it is necessary to indicate that the first thing we have to make clear, when we discuss the legal meaning for damage, is that the damage in general conditions of liability and the damage in damages are totally two different perspective in different aspects. At the same time, we have to put the focal point of definition on the damage in general conditions of liability and exclude the damage in damages. Therefore, when we concretely definite the damage, the general conditions of civil liability, we are supposed to choose the third theory, the standardization theory. In addition, after we clearly definite the legal meaning for damage, it also helps us to differentiate and analyze the similarities and differences between damage and loss, damage and harm.At last, this section emphases the significance of the role which damage plays in the imputation in civil liability. From the view of historical development, on the premise of analyzing the different changes of damage in four different history periods, it clarifies that damage is an ever-changing perspective and the connotative meaning and marginal meaning for damage are getting extensive with the development of society. The legal position for damage is also increasing. Meanwhile, this section further clarifies the necessity of taking damage as the precondition of constituting civil liability and it is the first factor in general conditions of civil liability. As damage not only differentiate civil liability from other liabilities, but also definite the foundation for the scope of covers of damages and determine the damages liability in letter and in spirit. Furthermore, it shows the purpose of civil liability compensating damage.Chapter two:The damage in Torts--- Recoverable damage. This chapter, on the premise of investigating the foreign legislation cases and the different domestic points of view on the concept of damage in Torts, definite the concept of recoverable damage. Also in this chapter, the author definite the factors, which need to be considered in the process of establishing recoverable damage, and the restricted forms for recoverable damage in the present legislation.In addition, the author microscopically analyzed the internal characteristics of recoverable damage.First of all, the author makes the damage in Torts clear,that definition for recoverable damage should be relatively flexible, through inspecting the laws and regulations on damages in the legal systems of the following six countries:the UK, the US, France, Germany, Holland and Austria. If we have to give a generally effective definition for recoverable damage, it should be linked with duty. However, for the concrete content of duty varies from country to country, it results in the concrete content of damage is different in every Torts system. On this basis, considering the Torts system in China, the author presents a concept recoverable damage after analyzing the many scholars’definitions on this concept.In the second, from the point of study purposes and functions on Torts, coupled with reaffirming to compensate victim’s damage as the fundamental aim, this chapter emphasis that it is unnecessary to over scarify the injuring party. Therefore, when we definite the factors on recoverable damage, we have to seek a value standard that can balance the interests of the two parties. And these standards include the following factors:public policies, purpose of laws and regulations, coordination between Torts and other laws, the nature of stricken interest, degree of participation of injuring party and the degree of damage. Furthermore, by inspecting and comparing the foreign legislation cases, this chapter definite the every method with which laws restrict the extent of recoverable damage. And its purpose is to balance the interest relation between the two parties, to make the system of damages balanced, to restrict those tiny disputes from lawsuit, to effectively and reasonably utilize judicial resource meanwhile protecting the legal interests of two parties. This also reinforces the uniformity of legal system and avoids the judges’ immoderate discretion.At last, by analyzing the general features of recoverable damage, the coexisted and common features of all the damages which can be compensated, this section definite the essential difference between the recoverable damage and irrecoverable damage. And the same time, it definite the extent of recoverable damage.Chapter three:The damage patterns in Torts. If the chapter two definite the extent of recoverable damage from the internal characteristics of damage in Torts, the chapter three analyzes the outward manifestation of the damage in Torts and definite which damage can be concerned and helped in Torts. According to the basic classification of damage patterns in Torts, this chapter definite which damage should be compensated and which damage can be compensated depending upon law, after discusses several classifications. And then, on this basis, this chapter differentiates and analyzes the outward manifestation and classification of pure economic loss and mental distress; offers the relevant legislation suggestions.In the first place, according to the different standards, this section classifies the damage pattern into pecuniary damage, non-pecuniary damage, direct damage, reflected damage, factual damage; damage per se, legal damage and marginal damage. And discuss these damage patterns primarily; on this basis, specially discuss lost chance, mental shock and other distinctive damage patterns.In the second place, this section discusses the pure economic loss in the property loss field. Therefore, as the research on pure economic loss bestrides between contract law and trots, this research involves partly the development trend of contract law and trots in the future. On the basis of demonstrating the basic features of pure economic loss, this section classifies the different patterns of pure economic loss according to the research on the existed typical cases. And on the premise of clearing the principle of free compensation and the exception of compensation, this section points out that,with the development of economy, perfection of legal system and technology, it is necessary and feasible to introduce the concept of pure economic loss into our legal system. Apart from these, it also gives some legislation suggestions on concrete regulations.At last, this section specially disserts the non- property loss part, the mental distress. The reason why we disserts the mental distress is just because, with the increase of public awareness of law, in recent years people start to pay more attention to the typical objects of human rights, such as:life, completeness of body, reputation, dignity, independence and liberty of body. However, as the law is often lagging, it has been a deficiency in definiting the patterns and degrees of recoverable damage. This section discusses the serious consequence in definiting the mental distress particularly, on the basis of classifying the patterns of mental distress and from the point of the feature of mental distress, hoping to offer assistance to juridical practice. In addition, this section also primarily discusses the biological damage and its possibility of existing in the Torts in our country’s legal system.Chapter four:Evaluating damage amounts. This chapter lays the foundation for the concept of damages through evaluating the concrete damage amounts. This is the best reflection of the torts, starting from damage and ending in damage. As the difference between the property loss and mental distress, it is determined that the standard and method for calculating property loss and mental distress should be totally different.First of all, from the feature of property loss and analyzing the effects of subjective factors and objective factors to property loss, this section definite the principle that property loss should be compensated completely and advocates that property loss should be evaluated objectively on the basis of considering all the subjective factors. And then, the time standard and location standard in the evaluation of property loss are disserted detailedly and some suggestions are also put forward to on the basis of questioning certain regulations in existing legislation. Furthermore, in this section the author definite the different concrete methods of calculation for property loss by analyzing the actual loss and acquirable profit loss.The second, being different with the standard of evaluating property loss, the subjective factors of mental distress make it hard not only in degree of definiting but also in time point of definiting. Therefore, definiting mental distress cannot only depend on the subjective standard or objective standard simply. It is necessary to consider every factors of victim synthetically and make it clear that evaluating the amounts of mental distress is a process which combines the subjective definiting and objective definiting. Eventually, combining the inspection for the foreign regulations of damages in their legislation and the view points in our country, establish our principle for evaluating mental distress.