Research On Loss Of Chance Of Tort

the theory of the loss of opportunity is that if the defendant’s tort damage or reduce the plaintiffs opportunity to obtain more favorable results, the plaintiff can request compensation for loss of opportunity. This theory has been applied in judicial practice law, but has some differences in the scope of application.At present, law in China does not recognize that the loss of opportunity is compensable damage,it then results in some problems to identify opportunities for damages in the judicial practice of judges.The theoretical circles have less discussion on the loss of opportunity,and there is also dispute on the introduction of the theory. In order to correctly guide the judicial practice, to better protect the rights and interests of the parties, it is necessary to improve the existing provisions.This paper is based on the basic principle of tort compensation, theoretical research combined with the current legal provisions and the relevant scholars, and at the same time reference foreign theory about specific cases of the loss of opportunity and research results.In order to provide a useful reference for the judicial practice in china,it puts forward the necessity and feasibility of theory of the loss of opportunity. This paper is divided into five parts:The first part describes the opportunity loss, properties, characteristics and types of concept.Look from the concept, this paper discussed the opportunity loss is not limited to the survival opportunity loss, also includes the winning opportunity loss, loss of business opportunities etc..In nature, the opportunity itself represents some interest, has the legal protection value. Opportunity loss belongs to the expectation interest in medical tort field, also reflected the interests of personality.The second part is the study of comparative law on the opportunity loss theory.Mainly elaborated expand theoretical opportunity loss American law generation and French law, Japan law on the opportunity loss theory.Analysis and comparison the differences between different countries about the opportunity loss theory applicable scope.Summarize the main approach taken in various countries and regions are recognized loose standard of causation and limited admitted opportunity loss as a damage.Finally, the analysis of different countries and regions in the judicial practice reference value to china.The third part mainly discusses the opportunity loss causation theory.A comparative analysis of the shortcomings and defects of the traditional rules of causation in the opportunity loss cases, standard of causation is not immutable and frozen, requires concrete analysis of concrete problems. And pointed out that the loose causal relationship should be widely applicable to solve the opportunity loss cases.The fourth part describes the opportunity loss compensation for damage in theory.Identification and damage is mainly on opportunity damages calculation two aspects. Describes the damage features, classification. Understand the concept of damage claims in a broad sense, and that the chance of damage to the general features of the compensation damages. In the calculation of damages, claims to proportional compensation based, supplemented by the method of the judge’s discretion.The fifth part focuses on China’s legislative and judicial status quo and improvement suggestions. China’s current law does not involve the opportunity loss compensation. In judicial practice, due to the lack of relevant laws and regulations, the victim is often difficult to get compensation of loss of chance. But from foreign legislative, judicial experience and the national conditions of our country, our country admit opportunity loss compensation has the necessity and the feasibility. Introducing the opportunity loss theory suggests our country to tort law, second, sixth as the basis of claim right. In the calculation of the loss of opportunity, In order to calculate the amount of compensatio,the ultimately damage compensation should be multiplied by the corresponding coefficient.