The Question Research Of Loss-of-chance Compensation Lawsuit

Along with unceasing transformation of social development,some new cases constantly emerge and loss-of-chance compensation has entered people's field of vision.Due to unified rules and prove standard of the loss-of-chance,combined with the traditional rules of "all or nothing" and "insufficient relief" or excessive compensation and other limitations,resulting in the judicial practice of similar cases have different or even opposite the verdict.we have to reconsider this kind of case processing result of legitimacy and fairness.It makes us not only from the perspective of substantive law to re-examine the traditional tort liability law can solve the problem of loss-of-chance compensation,consider whether the loss-of-chance compensate how much,how to compensate and to compensate,also prompted us from the perspective of procedural law case to consider the loss-of-chance of burden of proof,proof standard,and other issues.The author in the other country about loss-of-chance dispute processing rules and on the basis of theoretical research results,combined with our country's judicial practice,attempts to explore the response of loss-of-chance compensation cases.There have been some scholars discussed the loss-of-chance compensation problem,but the existing results mainly from the Angle of the tort liability law,a substantive law demonstration loss-of-chance damage and causation in the case,and the author try to analysis from the Angle of the civil procedure law,the burden of proof,the proof standard of loss-of-chance case,and the problem of evidence rule tries to combine the procedural law and substantive law analysis of loss-of-chance cases.This article mainly discusses in the following aspects: first,we will examine the case of loss-of-chance in China by taking part of the judgment as sample.Second,the concept,characteristics,and the status of the judicial situation of loss-of-chance.Third,the analysis of loss-of-chance under comparative law.This paper analyzes the theory and practice of the loss-of-chance in different countries and regions,and analyzes the differences,references and experiences and practices.Fourth,the idea of the litigation for the loss-of-chance in our country includes the applicable scope,the proof of responsibility,the proof of the standard,the scope of responsibility and so on.In the case of causality,there is a need to distinguish between causality and the causal relationship of responsibility.On the basis of judging the likelihood of causality,the extent of liability and the amount of compensation are determined based on the proportion of probabilities.In the case of the standard,"proof of standardreduction".As long as the plaintiff can prove that the defendant's actions increase the risk of the plaintiff's chance of loss and reach the level of conviction within the judge,it is no longer subject to high probability.As to the facts to prove to what extent can achieve inner sure from the judge,need to judge according to the specific conditions of different types of loss-of-chance and case cohabitancy.In terms of liability,the calculation method needs to be discussed.In the case of statistical probability,the law of large Numbers is used to estimate the amount of compensation;When the law of large Numbers is difficult to work,it can be dealt with by the idea of determining the amount of compensation for damages.That is to say,in a suit of damages if it has been damage to the facts and hard to prove how much damage size,the judge can consider each factor to damage compensation amount discretion.The judge,on the basis of the overall consideration of the case,measures the benefits of the loss-of-chance.No matter what kind of calculation is inevitably exists to a certain extent on the discretion and is not accurate,not absolute precision fair,but relatively reasonable and fair.