Study On The Determination Of The Scope Of Compensation For Tort Property Damage

The so-called scope of compensation for infringement property damage includes two dimensions of "quality" and "quantity".The dimension of "quality" refers to what kind of property interests can become damage and should be compensated.The dimension of "quantity" refers to how to calculate and determine the final amount of compensation on the basis of the determined amount of compensation.Thus,the scope of property damage compensation can be carried out according to the logic of "damage identification-definition of compensable damage-determination of damage compensation-calculation of damage compensation-reduction of damage compensation".When there is damage,we should consider the issue of compensation.When we consider the issue of compensation,we need to consider the scope of compensation.Therefore,the damage is the logical starting point of the whole scope of property damage compensation.When determining the scope of damage compensation,we need to determine whether the damage exists at first.The theory of damage balance takes the existence of property balance as the standard of damage identification.However,the theory of damage compensation can only represent the damage in calculation,but can not reveal the nature of the damage.In order to meet the needs of the increasingly prominent function of the declaration of rights,organization theory seems to have more advantages.If there is no damage,there will be no compensation;but if there is damage,there will not necessarily be compensation.The object of compensation must be recognized by law which can be relief of damage,that is,compensation for damage.In the Comparative Law,there are three models to define compensable injury: the first one is the definition of "damage characteristics" in France,the second one is the definition of "scope of rights and interests" in Germany,the third one is the definition of "obligation range" in common law system.In the legislative theory,the mode of defining the compensable damage in our country should belong to the mode of German law,that is to say,the scope of the remedy of the damage should be determined by the protection of the infringed rights and interests,and the scope of the remedy should be determined by the scope of the legally protected rights and interests.However,due to lack of a normative basis for the interpretation of articles 823 and826 as the "three small general clauses" of the German Civil Code(B�rgerliches Gesetzbuch),it is necessary to look for other alternatives in the theory of interpretation,"negative exclusion and flexible system" is one of the alternatives.The compensable damage only indicates that the fact of the damage suffered by the victim has the possibility of relief,and does not mean that the victim will be compensated.Therefore,it is necessary to delimit the scope of compensation after the compensability of the damage has been affirmed.In the principle of full compensation,causality is the only factor to determine the scope of compensation for damage,whereas in the principle of limited compensation,besides causality,the degree of fault also affects the scope of compensation for damage.Based on the aim of compensation for damages,the pattern of tort in Article 1165 of the Civil Code,the inheritance of theory and the practice of judicial practice,the theory of interpretation should consider that China has adopted the principle of complete compensation.Therefore,the causality can determine the scope of damages.The traditional theory of causality,whether it is the theory of equivalent causality,the theory of statutory purpose,the theory of obligatory range or the theory of recent cause in law,is not clear about the elements of the attribution and the fault,and the structure of attribution is not reasonable.When using causality to define the scope of compensation,it is necessary to distinguish and clarify it.It is necessary to clarify "compensation for how much� after the issue of"compensation for what" has been resolved.Therefore,the calculation of damages is crucial.Article 1184 of the Civil Code establishes two kinds of methods: "calculation based on the market price when the damage happened" and "other reasonable methods".the scope of application of the former method should be limited to direct property damage with little or no change in market price.Indirect property damage(loss of obtainable interest)shall be calculated at the price at which the victim would have acquired the benefit.According to the judicial practice,"other reasonable ways"include the appraisal method without market price,the insurance value determination method,the discretionary law and other methods prescribed by civil law.Finally,when determining the final amount of compensation,we should consider whether it is possible to apply the rule of deduction of collateral benefits,the rule of contributory negligence and livelihood discretionary reduction,and make an adjustment to the calculated amount of compensation.The rules of offsetting profit and loss and offsetting negligence do not mean that they violate the principle of full compensation.Only the livelihood discretionary reduction rule based on the protection of the survival rights and interests of the compensation obligor is an exception to the principle of full compensation.Based on its exceptional character,it is more conducive to its proper application to stipulate the applicable conditions of discretionary reduction rule in legislation.In the absence of provisions in the civil code,the rule of prohibiting from abusing rights in article 132 of the Civil Code may serve as the basis of legal norms for livelihood reduction.