On The Determination Of Amount Of Civil Damages

In the civil litigation for damages, the plaintiff should claim and prove the occurrence ofdamage and the amount of damages firstly. But it is difficult for the party to prove the amountof damages in practice. To resolve this problem, there exists the determination system ofamount of damages in civil law countries and regions. In China, there are some differentcorresponding measures for this issue in judicial practice. In legislation, the exploration hasbegun in the substantial law, but the procedural law lacks for response. This paper made useof analyzing, comparing and linking theory with practice to prove related issues about thedetermination of amount of damages, expecting to clarify the controversy over thedetermination of amount of damages, supplement Chinese system of the determination ofamount of damages and improve Civil Procedure Law in China.The body of this article including about30000words is divided into four parts：Part One：Putting forward problems. In damage law, the amount of damages is not aconstitutive requirement of the request right of damages, and can not be the ultimate fact inprocedural law. When the party has proved the damages, the judge should make a decision infavor of the request right of damages, but can not determinate the amount of damages becauseit is difficult to prove it. Meanwhile, the judge can not adjudicate by the norm of burden ofproof because the amount of damages is not the ultimate fact.Part Two：The determination of amount of damages in comparative law. There arelegislative regulations about the determination of amount of damages in civil law countriesand regions. It is regarded as free evaluation of evidence on the determination of fact andhighlights the responsibility of party in Germany. While Italy regards it as discretion ofevaluation of law and highlights the responsibility of judge. There is a changing process formfree evaluation of evidence to discretion in Austria and Switzerland. Additionally, in Japanand Chinese Taiwan, there is a compromising standpoint of emphasizing the cooperative roleof parties and the judge.Part Three： The nature of the determination of amount of damages. There arecontroversies over the point of lowering standard of proof, discretion and compromising inquality. Firstly starting from the definition of Damages, clarifying the relationship betweendamages and the amount of damages, and concluding that the point of damages fact is more appropriate. Secondly, analyzing the specific effects of determination of amount of damagesand proving that stressing cooperative role of parties and judge is more appropriate. Thirdly,back to the process of judgment, the above points are corresponding to the compromisingpoint.Part Four：The application of determination of amount of damages. In applicablerequirements, regarding the existence of damages and proving difficulty for amount ofdamages as elements. On specific effects, on the one hand, expanding the judge’s discretionon standard of proof and investigation of evidence；on the other hand, abating the party’sresponsibility of claim and producing evidence and strengthening the procedural protection ofparties.Part Five：The improvement of determination of amount of damages in China. To solvethis problem, there exist three measures that ascertaining by free evaluation of evidence,assessing by discretion and adjudicating by burden of proof in practice. Chinese legislationhas explored some regulations from the perspective of substantial law. However, there aresome disadvantages of limiting applicable scope, ignoring the role of party and lying hardupon judge. China ought to improve the civil procedural law by constructing the principle offree evaluation of evidence, the system of publicity of discretionary evaluation anddetermination of amount of damages.