The Compensation Of Loss-of-Chance In Tort Law

Nowadays, with the development of society, more and more legal relations need tobe protected, legal lag performance is also more and more obvious. Among them, theloss of opportunity interest need compensation problem becomes our country ’s law of ablank, academic to this topic of discussion, this paper also attempt to discuss thisproblem.Opportunity lost profits damages is an unavoidable topic, because it leads toimpaired benefits losing does exist. Foreign to this theory are redefined or repair, theauthor thinks, in such cases is increasing today, we need to face this problem, thetraditional tort theory for breakthrough. The two sides to seek a balance point: on theone hand, the principle of fairness and justice of law, on the other hand, the legalprotection of stability.This paper is divided into five parts, the opportunity lost profits damages, foreignintroduced the stipulation to this question to carry on the analysis, then unifies ourcountry on this opportunity lost profits damages theory attitude, thus applicable to ourcountry opportunity benefit loss compensation theory to conduct a feasibility analysis,finally concluded: in China reasonable range can be used the opportunity interest losscompensation theory.The first part, through to the opportunity to benefit concept, and the opportunitiesand expectations in relation to the right line by analysis, so as to benefit the opportunityloss theory introduction. Opportunity interest loss theory (loss of a chance doctrine),also known as" survival loss of chance doctrine" was initially used by the United Stateslaw school of University of Tennessee ’s Joseph H. King. Jr. The professor. This theoryis the core content of if the victim should get benefit or avoid interest to reduce thechance of damage, so the plaintiff can damage to chance lawsuit, claimed. The second part, opportunity benefit loss compensation theory theory. This paperfrom the opportunity lost profits damages for loss of chance object of interestcompensation for research, and on the UK and us, and Japan opportunity benefit losstheory of judicial practice. Due to chance specific decision the lost opportunities shouldbe judged as a compensation for the damage, the court should this interest by the lineprotection. Many states in the United States Court for the theory, the view is different,but basically be recognized type of case has two kinds: one kind is to avoid the loss offuture injury occurred to the opportunity. Two is the loss of chance of cure case. Franceon this theory applies broadly in many, many areas have applied this theory. It is mainlyapplied in two aspects: one is to avoid future damage occurred to the loss of chancecircumstances, also applies to the past to avoid damage happened; on the other hand isthat it is applicable not only to the economic loss cases are equally applicable topersonal injury cases. Britain is mainly applicable to the economic interests of the.Japan in medical tort type in recognition of the opportunity as a benefit which mayanticipate, should be given compensation for mental damage.The third part, our country of opportunity interest loss compensation theory theanalysis of judicial practice. In our country, opportunity benefit loss compensationtheory a conservative attitude. Support for the scholar thinks, our country law of tort fordamage protection is inadequate, not to be able to embody the principle of legal fairness,which for many of the victim is not fair. Opposing scholars think, the theoreticalfeasibility of low, in how to determine the damage, causation and how the compensationissue is not a rational approach.The fourth part, the article combines the practice in foreign countries and the actualsituation of our country, to our country the application of the theory to put forward thefeasible analysis. In comparing the various theory, the author thinks, opportunity benefitcompensation is not the traditional causal subversion, but to its complement. In confirmation of compensation method on the problem, in this paper, more inclined tojudge discretion that give priority to, proportion of compensation is complementarymethod. Opportunity interest compensation theory does not apply to all situations,reasonable limit the theory, make it play its role.The fifth part, based on the theory of opportunity interest loss of various analyses,summarizes our country can apply the theory. Point out in a reasonable range intoopportunity benefit loss compensation theory, to protect the interests of victims.