The Determination Of The Scope Of Damages In Hypothetical Causation Cases

The law of hypothetical causation in tort law has existed for a long time,but the existing theoretical research in our country is not sufficient.There is a problem in the judicial practice that hypothetical causation cases are relatively unfamiliar and similar cases are not consistent.Research on this issue has long been carried out in Britain,the United States and other countries and various jurisprudence has been formed.Its research results have reference significance to our country.It is assumed that the hypothetical causation exists two reasons:the real reason and the hypothetical one,and involves the problem of damage compensation.The crux of the problem lies in whether the hypothetical causation can correct the scope of damages of the tortfeasor of real reasons.The nature of the damage needs to be clarified before it can be determined whether hypothetical causation can correct and how the scope of the damages is to be fixed,since the nature of the damage determines whether hypothetical causation can correct the scope of the damage and determines the point in time at which the damage is calculated,and the time point affects the extent to which hypothetical causation is assumed to correct the extent of damages.The understanding of the nature of damage should take into account the purpose,value and function of protection of legal norms,and adopt the normative concept of damage.The time of the damage calculation is that the damage occurs in China,so the hypothetical causation that occurs after the damage can not be amended to compensate for the damage,which may lead to inequity.Thus,for the cases of the type of hypothetical causation,damage calculation should use the time point of damage calculation.To reasonably solve the hypothetical causation,it is necessary to classify hypothetical causation cases.It is assumed that the hypothetical causation is classified according to the nature of hypothetical cause,the effect of hypothetical cause and the types of damages,and also involving the influence of subjective state of actors.First of all,base on the nature of the hypothetical cause to judge whether the correction of the hypothetical cause can be considered:assuming that the hypothetical cause belongs to the infringement that is attributable to the third party,it generally does not consider the correction effect of the hypothetical cause.Assuming that the hypothetical cause belongs to the act or event that can not be attributed to the third party,the time for the hypothetical reason should be distinguished,and the pre-existing hypothetical cause generally can amend the scope of the damages.For the following hypothetical cause can adopt “Attachment or Avoidability Test” to judge whether hypothetical cause can correct the scope of damages.Second,if the hypothetical cause has the effect of amendment,and then specifically analyze the extent of the compensation for damages: according to the effect of the hypothetical cause,hypothetical cause can cause duplicated harm or aggravated damage.For the aggravated damage,the victim should bear the damage himself in the hypothetical cause of the non imputation case.For the duplicated harm,apply the identity of harm test to judge whether it is duplicated harm and distinguish between the final damages and the continuing damages.For the ultimate damage should be borne by the real cause of the infringer;for continuing damage,it should be borne by the victim.