On The Differentiating Regulation Of The Tort Law To Remediable Damage

In term of the research on tort liability formation constituents,most previous studies have mainly focused on the significance of fault,causality,however,there was limited studies on damage.Indeed,from the angle of founded in tort compensation,the first important thing is to analyze the factual damage in study cases.One of the most requirements of establishment of tort damages liability is the factual damage which is the remediable damage that under the protection of the tort law.Based on the fault and causality,we can further analyze and determine whether remediable damage can be defined as damage that should be compensated.In terms of conducting and analyzing the factual damage,and the process of determining the existence of remediable damage,we need to start from the essence of damage on the torts law and utilize the divided into two thinking methods.First,when the benefit of injured party is threatened,it is certain to make sure that remediable damage can be defined as damage that should be compensated,on the other hand,when the benefit of injured party is infringed,whether the factual damage can be defined as remediable damage need to be determined by the evidence based on laws and regulations,for example,such as the existence of protective norms,whether contrary to good customs,or the range of protection intensities of rights already enumerated in legal texts,in order to arrive at a source of legitimate legitimacy to be protected for the interests of a particular case.Therefore,the study of the damage is by no means useless because in the current judicial practice,the judges unscrupulously protect the interests involved in the case by posting the "label of rights" in specific cases,resulting in the phenomenon of "generalization of rights".However,through appropriate ways of thinking and theoretical construction,we can draw a more justified solution to the protection of interests in judicial practice.This paper attempts to start with the analysis of the concept of damages in tort law,and on the basis of establishing the concept of compensable damages,studies the rationality and specific ways of distinguishing the substantive properties involved in compensable damages-rights and interests and determine whether the damages of specific interests can be considered as compensable damages by considering the range of rights and the screening of interests in the existing system for the blank area that can not be completely covered by the protection of rights and interests.At the same time,such work has a two-way nature-in the process of judicial practice protecting the interests,it is also a theoretical framework for creating new types of rights in the future,that is,the embodiment of the right creation function of tort law.In the first chapter,from the beginning of the concept of language analysis of damage and the concept of natural damage,the theory of damage concept has been carefully sorted out.From the process of sorting out the concept of damage itself,it is not difficult to find that the object of legal research on the concept of "damage"gradually shifts from the simple calculation of numbers to the the essence of damage.That is,scholars began to pay more and more attention to the specific content behind the fact of detriment.However,there are good and bad of several typical theories about the concept of damage in the traditional theory,which may not be appropriate in order to emphasize the superiority.In the process of perfecting the tort law system in our country,we should combine the advantages and strengths of several theories to fill the current infringement Law deficiencies of the elements of the research deficiencies.The second chapter focuses on the concept of remediable damage.By examining the regulatory model of remediable damage in each country's legislation and the tort law of our country,the author believes that under the existing "Tort Liability Law" in our country,we should take the protection of rights and interests pattern.And by adopting the three general clauses of German law as the method of interpretative theory,this paper establishes the reasonable protection of the distinction between rights and interests in the cognizance of compensable damages from the perspectives of the "generalization of rights" and the measurement of interests from the differences of rights and interests.The third chapter explores the protection of the remediable damage,starting from the study of the essence of rights,proving the nature of the protection of rights by the law of infringement and at the same time analyzes the provisions of the legislation for the protection of rights,and takes the concept of framing right introduced in German civil law as an example and the revision of Article 709 of the Japanese Civil Code as an example to discuss the limitation of limiting the definition of compensable damages to the infringement of rights which means that the scope of protection must be extended to interest above.This kind of demand leads to the phenomenon of "generalization of rights" in judicial practice.The basic countermeasure to this problem is to uphold the formalism of rights protection and regulate the protection of interests through other paths of interpretation.The fourth chapter studies the ways to regulate the benefits of remediable damage,defines the nature of the nature of interest in remediable damage from the concept of "interest" as defined by the law of interest,and lists several ways to classify the benefits.On this basis,through the study of the legislative cases in various countries,it is concluded that the "Tort Liability Law" of our country should interpret the German law for the regulation of the remediable damage,that is,the regulation of the protection of interests can be carried out by two modes of interpretation,which violate the protective norms and violate the good customs.This chapter details each of these two modes separately.In the end,the issue of the expansion of the protection of interests in compensable damages is discussed.Due to the growth of interest itself,it is necessary to find a regulatory model other than the above two modes:the range of rights and the selection of interests.Based on the previous chapters,the fifth chapter puts forward a new regulatory model for the right of compensable damages-range of rights and interests screening mode.This mode needs the Maslow hierarchy of needs to select the interests,The theory of interest measurement excludes the interests that do not have the appropriateness,and by considering the composition and level of rights,it is possible to consider where the range of legal effects can be and at the same time we need to use the dynamic system theory to discuss the above factors in combination with other responsibilities.And through four typical cases of this mode of practical application has been explained in detail.The sixth chapter rethinks the right creation function that the tort law has while protecting the rights and interests.First of all,from the functional analysis of the general provisions of tort law as the starting point,it confirms the existence of this function.Through the interpretation of the connotation of the right creation function,the division of protection of rights and interests into different stages of the operation of the right creation function.Finally,taking privacy as an example,this paper introduces the mode of the right creation function,which will be helpful for further understanding of the right creation function of the law of tort.