Study On The Gains Offsetting The Losses

In the introductory part, first, the author examines the historical origins and losses offset rules. Secondly, I look for the profit and loss offset rules on our existing law, which does not regret that there is a clear legal provisions, and there are only three judicial interpretation. Given the complexity of real life, the damage to the profitability of the diversity of events, related to the outcome of the trial is not unity, I believe it necessary to conduct a comprehensive loss offset rules, in-depth analysis.In the first chapter, the author discusses the theoretical basis of profit and loss balance, that question the legitimacy of the applicable rules. The traditional doctrine that the theoretical basis for the profit and loss balance "balance" and "theory prohibits said Suntory"; recent theory another way, try the "teleological explanation" for the rule to find a theoretical basis. "Difference" and "theory prohibits profit said," there is no difference in nature, but different standpoint: the former based on the actual damage caused by the damaging event, while the latter is based on preventing the right to compensation for the damage event to obtain additional interest. Both embody the principle of full compensation. Whether it is "the difference between saying" or "prohibit profit, he said," only provide a theoretical basis for the application of profit or loss offset rules, but can not explain why or loss offset restrictions apply sometimes are justified. "Teleological explanation" from the perspective of the purpose of damages for the loss offset rules apply whether or not to seek a theoretical basis: The purpose of support is available to fill the damage and losses offset and the purpose of the prevention of harm or loss offset restrictions apply.In the second chapter, I start parsing loss offset rules four constituent elements, namely the establishment of a debt of damages, compensation for rights holders have an interest exists between the damage and the causal relationship between the interests of a considerable loss and the applicable offset by regulatory compliance purposes.In the "debt Damage Compensation establishment", the author demonstrates the first offset gains and losses in the "damage" can limit the damage in compensation, namely the establishment of debt Compensation damage. Secondly, Professor Zeng Shixiong’s "request to perform the contract" and "request the return delivery, reducing the price of gold or revoke legal acts, when the cancellation of a contract," NA offset losses this point, the author analyzes the results of such cases already exist damage compensation debt, there should be room for suitable offset losses. If the unjust enrichment of people but also by damage, the loss of course offset rules apply. Since contributory negligence will have an impact on the scope of damages, so this part also discusses the relationship between profit and loss balance and applicable contributory negligence, the conclusion is that the former should prevail.In the "right to compensation eligible interest" section, the author first stressed the need to suffer damage for the same person(the right to compensation), was of interest. Secondly, it discusses the benefits of their own conditions to be fulfilled. Again, in the interests of only deduct consequential damages project that not only benefits and deductions are deductible for an identical nature of the damage, but this benefit can only deduct an item corresponding damage. Finally, the balance in the profit and loss calculation abstraction occasions applicable margin, which is limited to the case of non-quorum of calculation."There is considerable interest between the damage and the causal relationship" part around damage and causal relationship to expand benefits, which is one of the key elements of judgment and loss of balance if applicable. According to the time order of appearance, there have been, "said homologous or loss" and "quite causality." "Said homologous loss" point of view is too narrow, it should be applied to many of the gains and losses are offset by the exclusion of the case, thus gradually be abandoned. It is generally believed that a considerable causal relationship based on predictability, the damage is attributable criteria. In fact, quite the causal relationship is based on the possibility of happening, with the possibility of high and low to determine whether there is a causal relationship between behavior and results. Therefore, if there is a considerable causal relationship between the interests of the event and the damage that interest is damaging event caused it loss offset rules may apply. The biggest drawback is that too much to say expand the scope of loss of balance, so that the interests of certain deductions should not be deducted.The "profit and loss balance regulatory compliance purposes," but to make up for the "quite causality say" inadequate. According to regulations, the purpose of that benefit directly from damage if the event, then the interest should be deducted. If the interest payment from a third person or the victim of its own alternative behavior, then we must examine the legal purpose or perpetrator intended to pay the victim or the perpetrator, the former should not be deducted. In addition, the author describes the "regulatory purposes, said" the nature of the theoretical discussion of the problem no longer stay in contact with each other between things, the level of interaction, but directly from the object point of view to inspect or regulate behavior, and thus "losses offset by regulatory compliance purposes " loss offset rules can be used as an independent constituent elements.In the third chapter, the author gains offset different types of cases to be analyzed according to the interests of source attempt. Related cases are divided into three categories, a number of categories.First, the interest from non-victim or a third person’s behavior means that interest payments from the damage event itself, by the events directly contributed to the damage. In most cases this interest is deductible, whether positive or negative interest interests.Second, the benefits derived from the behavior of the victim, a common situation is derogatory action. When compensation for the right to take reasonable measures to derogate from its benefit should apply offset losses; the right to compensation when the efforts of more than a reasonable derogation measures in this range, the benefit should not be deducted.Third, the interest payment from the third party. There are two cases :( a) the third party grants and social assistance;(b) insurance. In the first case because the interests of those who pay the purpose is to make compensation for the right to benefit, so naturally there is no room for gains and losses offset applicable. The second case is more complicated. First, for the commercial insurance property insurance, because insurance is the victim in order to spread their own risk, the insurance company does not pay the insurance money is to reduce the liability of the purpose of the offender, so the victims have received compensation, may apply profit and loss balance, but the insurance company will get for the perpetrators of the right of subrogation. For commercial insurance in the life insurance, the right to compensation for legal hope people get double benefits, could not offset losses applicable. The Fundamental Value Goals third party liability insurance liability risk is dispersed by the insurer, so the insurance compensation for losses can be applied to offset deductions. Second, social insurance, such as work-related injury insurance, universal health insurance or agricultural mutual insurance, social welfare has its nature, its purpose is to have the damage suffered by the victim dispersed in society, rather than to reduce or waive perpetrators responsibility, so they tend not to double profit deductions, but a fair and reasonable approach is to establish the right of subrogation system.