The Research On The Loss-of-Chance And Compensation

In domain of damage law, the traditional tort law only protects those definite rights and interests, thus the interests of chance are not included. However, the cases of loss-of chance are very common. As there is no place in the law and few people concerned with them, compensation on loss-of-chance has not got attention by law. Apart from the principle of "all or nothing" followed by traditional tort law which used in inspecting tort liability, the partial causation is eliminated which the cases of loss-of-chance just confront with. Many victims therefore got no ways to relief their rights in many circumstances because of the strict causation requirements.In order to solve the problems caused by cases of loss-of-chance, lots of scholars and courts turn to alter the causation doctrine,and others broaden the implication of damage. The loss-of-chance doctrine, first raised by Joseph King, came out of this circumstances. According to this doctrine, when a defendant tortiously destroys or reduces a victim's prospects for achieving a more favorable outcome,the plaintiff should be compensated for that lost prospect. Although this issue has garnered substantial support over many countries, including those countries holding the common laws, France, Japan and many others, there are still some disputs exited during the use and scope of its application. Moreover, the unexpected of chance and difficult calculation on compensation,and traditional causation concerning make a question of how to use it properly in the specific application.At present, there is no concerned specific law and regulation on this doctrine as well as the scholars' research. In contrast, the advanced legislation and judicial practice in foreign countries protect victims' interests much better. We should adapt loss-of-chance doctrine in legislation and judicial practice, not only in tort area, but also in contract field. Whatever,there should be a break to the traditional theory which fulfilled the requirements of law rather than abandon the traditional rules of causation and damage determination.Employing the comparative analysis method and economic analysis method, this article will introduce the loss-of-chance doctrine systematically and compare the similarities and differences of the application on this doctrine in abroad, with the purpose of finding a balance between the justice and the stable of tort law. On the basis of collecting literature of common law and civil law, this article will focus on the basic theory of the doctrine and discuss the problem of how to apply this doctrine and resolve the policy disputes, then put forward some suggestions of how to ascertain the damage and causation in loss-of-chance cases.