Study On The Compensation For Abstract Loss In Case Of Personal Tort

With the continuous development of our society, more and more personal tortcases which involve abstract losses are attracting much attention by the society. Onthe one hand, a series of typical related cases with social impact are increasing sharply;on the other hand, the related legislation of the abstract loss compensation of personaltort of our country are still defective. In face of such judicial actuality, China mustdraw lessons from the related judicial practice experience of foreign countries, andformulate the law of our own country based on our national conditions.In view of the present situation of the current legislation and judicial of ourcountry, this paper put forward two reimbursable types in regard to the abstract loss ofpersonal tort cases, which are the future income loss and future opportunity loss.First of all, the legislation of future income loss itself has become possiblebecause of the existing legal provision of disability compensation of our country.According to the existing laws, disability compensation is different from the mentaldamage compensation; it exists as it is based on the compensation for materialdamages of future income loss which is caused by the damage from injury or loseslabor ability. This kind of theory which calculates the future income losscompensation in our country is known as the “Source of Life Loss Theory”, which isdifferent to the “Income Loss Theory” in Germany as well as the “Labor CapacityLoss Theory” in Taiwan. The calculated amount of compensation according to thetheory has the disadvantage of lack of protection to the victim. In addition, the modeof payment for the amount of compensation in China is based on the principles ofone-off payment with the exception of installment payment, which is neitherconducive to protect the term interests of the victim, nor convenient for the judicialorgans to adjust the amount of compensation according to the change of victim’sobjective conditions. Therefore, this paper put forward to follow the Japanese judicialpractice led by the “Labor Capacity Loss Theory”. First, the independent injuryconsequence of the loss of the victim’s ability is authenticated by the specializedappraisal organ in the judicial organ; Next, the court concluded the amount ofcompensation which the victim could get by calculating the income loss of the victimin a year according to the identified degree of disability and the "income loss ratetable" set in advance, and then multiply by the fixed number of years from the timewhen the victim infringement occurred to the age of the national statutory retirement. On this basis, implement the payment of damages in the mode of rely mainly ininstallments and provide collaterals according to the year, while take one-time pay assecondary reliance.Next, with regard to the legislation of future opportunity loss, according to thebenefit restoration theory of tort law, opportunity loss as an independent consequenceof injury ought to get a reasonable compensation. This is both complying with therequirements of protection of the victim, and also accord with the principle ofconvenient justice. So it is with the judicial practices in countries such as Britain andAmerica. To determine the causal relationship between the infringement act and theresults of damage, the author believes that simply opportunity loss as the causalitystandard should be supported. This standard put forward is built on the recognition ofthe independent value of opportunity itself, and also do not have to break the causalityinherent understanding of ideas. On designate the compensation scope for theresponsible person should undertake, this paper argues that it should insist on thebasis of the opportunity value itself as the basis of compensation, the judge measuresthe compensation scope of opportunity loss according to law the preset standard andmethod; while this preset standard is the reason of the opportunities for cost, theinterest can be foreseed by the general public as well as the infringer’s fault for theloss of opportunity.