Research On Pure Economic Losses Caused By Negligence

The compensation for pure economic losses has been a hotly-discussed topic inthe foreign academia. When China enacting the general provisions of her tort law,domestic scholars fiercely debate about whether pure economic losses shall becovered in China. What the pure economic losses victims damaged are not personalinterests, property rights, but his expected economic benefits. The reason why thevictims suffer these losses is mainly that there are extensive relationships between thedirect victims and the pure economic losses victims. The law respects and encouragesthe parties to distribute the risks between them prior to the occurrence of the losses, sothe pure economic losses happened under the contract shall be compensated.Furthermore, as for the pure economic losses caused by intentional behaviors, becausethe actors can be blamed subjectively, the losses can be predictable, and the scope ofresponsibility can be relatively fixed, there is no obstacle to compensate for the pureeconomic losses. Therefore, excluding the discussion of both, the paper focuses on thecompensation for pure economic loss caused by negligence.The paper can be divided into four parts, with the first part discussing theconcept of pure economic losses. Firstly, the writer integrates the views of scholars athome and abroad, and then on the basis of a comparative analysis of their opinionsputs forwards her own idea. Taking into account logic of the legal system as well asthe expected function of this system, the writer agrees with Professor Zhang, that ispure economic loss shall be limited to: firstly, losses suffered not due to personalinterests; secondly, losses suffered not due to rights specified in laws; thirdly,economic losses. In order to illustrate the concept of pure economic loss more clearly, the writer compares it with indirect economic losses. By contrast, the write finds thereis no difference in the nature between the two and the boundary is mainly due todecide whether shall bestow compensation for them.In the second part, the author describes the legislative and judicial situation ofpure economic losses caused by negligence in different countries. In common lawcountries, whether the pure economic losses can be compensated often depends onwhether there is a duty of care between the parties. With the loosening of theidentification of the duty of care, the pure economic losses caused by negligencebegan to be recognized as compensable. As a typical continental law country, theGermany applies a cautious attention to pure economic loss caused by negligence, andshe strictly adheres to her civil code and recognizes the compensability of pureeconomic losses only under specific circumstance by the way of establishing newsystem through cases. In France, all pure economic losses, in principle, arecompensable, but the French courts often refuse the compensation for pure economicloss by denying the existence of causal relationship.The third part of the paper mainly analyzes the legislative and judicial conditionsof China. Seeing from the Tort Law (2009), from the legislative perspective, thereseems to be no obstacle in China to get compensation for the pure economic lossescaused by negligence. But in the judicial practice, the judge often rejects the victims’claims for the reason that the victim has no relevant statutory rights or there are nospecific provisions in laws.The fourth part focuses on how our country set the controlling mechanism todeal with the compensation for the pure economic losses cause by negligence. Thewriter thinks, the fault, one of the constituent elements of torts, can be chosen as thecontrolling mechanism. Fault can be seemed as the breach of the duty and in certainconditions it can be identified with reference to the identification of duty of care incommon law.