Research On "Softening" Of Tort Damages

The law of damages generally consists of the compensation for breach of contract and the compensation for tort.Our country adopts the legislative path of limited compensation,which takes the predictability as the benchmark to the compensation for breach of contract,but chooses to be silent on the compensation for tort.In the future,it is inevitable to make a response to the regulation mode of tort damage compensation.Before making a response to the legislation,it is necessary to conduct an in-depth theoretical study.From the historical course of ancient legal system to modern legal system,the history of tort damage compensation is a history of expanding the scope of compensation until the determination of the principle of full compensation.And then the relief of the infringed rights and interests has been highly praised as the "supreme" status in the compensation for tort damage,which has been emphasized in the theories of various countries,especially China.It is undeniable that in the process of the transition from modern society to modern society,the victim's relief will be constantly stressed,and its legitimacy and necessity are beyond doubt.However,blindly regarding the victim as the absolute center of tort compensation,excessively ignoring the interests of the offender,there is also the risk of imbalance between freedom of conduct and protection of rights and interests,which should also be kept vigilant.In China,compared with the vigorous scene of the study of liability's establishment,the attention of liability's consequence law is less and less.Due to the weakness of the research on tort damage compensation,tort damage compensation tends to be simplified to the principle of full compensation,the knowledge of tort damage compensation is basically under the shadow of full compensation.In contrast,in modern society,whether the principle of full compensation has a transcendental legitimacy,this point can't be distinguished.In fact,the principle of full compensation has many disadvantages and is hardly suitable for dealing with the modern society.This point can be confirmed from the recent development of tort damage compensation in various countries.Therefore,China should not adopt such legislation as legislation example.After denying the legislative mode of full compensation,limited compensation,which is opposite to the full compensation,should belong to the proper direction.How to construct a reasonable tort damage compensation system under the direction of limited compensation is the next important task.Generally speaking,the establishment of tort damage compensation system should promote the realization of the basic goal of tort law,that is,the balance between the protection of rights and interests and the freedom of conduct.Therefore,the establishment of tort damage compensation system should be closely related to the reconciliation of the conflict between right's protection and freedom of conduct,and should be used as a guide to construct a proper legal structure.Therefore,this paper intends to explore the basic problems of tort damage compensation with the abandon of full compensation and the establishment of damage compensation as the main line,in order to provide different perspectives for the construction of tort damage compensation system under the logic framework of deconstruction and construction.The first chapter mainly expounds the establishment of the doctrine of full compensation and the review of the principle of full compensation.The determination of full compensation was not accomplished in a day.In Roman law.the cradle of modern law,tort damages is a process of gradual expansion.The compensation for tort damage in the early Roman law was mainly stipulated by the law of Aquillia.According to this legal text,damage is physical damage to the object itself and the scope of compensation is limited to the damage with a direct causal relationship.Moreover,the evaluation of damage was punitive,which did not fit in with the concept of modern damages law at all.It was only in later Roman law that the praetor law began to broaden the scope of damages.In the late middle ages,this trend continued to develop,and was generalized in the 18th century.In this process,the elements of punishment were gradually eliminated,and the modern damage compensation law was gradually formed,and finally the guiding principle of full compensation doctrine was determined in various countries.However,the doctrine of complete compensation has its own disadvantages,such as unitary interest measurement,rigid application of laws,and disregard for the prevention function of sanctions.Especially in modern society,these disadvantages are particularly obvious,thus giving birth to factors for further sublation.The second chapter mainly examines the development trend of tort damage compensation in modern society so as to seek the right direction for the construction of tort damage compensation system.Among the countries of continental law system,Germany France and Japan are the typical examples to accept the doctrine of full compensation.In these three countries,due to the rigidity of the doctrine of complete compensation is not enough to cope with the development of reality,breakthroughs have been made in various aspects to varying degrees,so as to realize the "soft"development of tort damages.Full compensation is just a theoretical vision.This point is the same in our country,the existing legislative theory of our country does not have the clue of full compensation,but has the tendency of limited compensation.And then neither in theory nor in judicial practice,the doctrine of total compensation has been completely adopted,but the emphasis on the appropriateness of the conclusion.Therefore.the theory of limited compensation replacing the theory of full compensation should be the future development direction of tort compensation.The third chapter aims at discussing the legal technique of delineating the scope of tort damages.The adoption of legal technology requires the justification of legal value,and the two are closely related to each other.From the perspective of legal value,the basic problem of tort damage compensation is to reconcile the conflict between the protection of rights and interests and the freedom of conduct.In fact,China's tort law is more focused on the former,thus causing a certain degree of neglect of the latter,which should be made clear.If the aim of tort damages is to balance the protection of rights and interests with freedom of action,then legal technology should provide the necessary evaluation framework for this purpose.Based on the flexible system,this paper holds that the scope of tort damages should be determined by the balance between the imputability and the significance of the infringed rights and interests,so as to properly reconcile the contradictions between the two.As a legislative theory,the flexible system has been controversial in practice and has been criticized a lot,but it is not irrefutable.If a correct understanding is formed and a proper measurement is implemented,the flexible system theory should be able to complete the task of defining the scope of damagesThe fourth chapter aims to explore the mechanism of determining the amount of damages flexibly,namely the system of deduction of damages and the system of determining the amount of damages.In order to realize the appropriateness of the liability for damages,the system of deduction of damages is to grant the judge the power to deduct the obligor's liability for damages under certain circumstances.The system consists of two major parts:livelihood and equity reductions,the former aims to protect the basic living conditions of the debtor in order to realize the concern of human nature in tort law.The latter aims to realize the substantial fairness of the liability for damages and to prevent the formation of a disproportionate burden on the debtor.The discretionary system of damages grants judges the power to determine the amount of damages at their discretion under certain circumstances.The reason is that the victims cannot always effectively prove the amount of damages under special circumstances,or the judge needs to consider more relevant factors for certain reasons.Therefore,the system should ensure that judges have certain discretionary power to achieve effective relief for victims.The fifth chapter is a methodological defense of the "soft" theory.Although the"soft" legal technology can effectively lead to appropriate legal conclusions,it will inevitably lead to the destruction of legal certainty,which is the inevitable conclusion derived from the rationality of form.However,legal positivism has been heavily criticized,and the certainty it claims cannot be achieved in reality.Whether the legislator's limited rationality,the "open structure" of legal rules,or the complexity of legal reasoning,all lead to the uncertainty of law,which is the inevitable result of value judgment.Based on this,the correct direction should be to explore how to recognize the uncertainty of law and how to limit the uncertainty within the tolerable range on the premise of acknowledging the uncertainty.The way to solve this problem is to resort to the legal argumentation theory called "the third way",which can balance the certainty and appropriateness of the conclusion...