On The Application Of Break-Even Role Of Profit And Loss In Compensation

Compensation of gains and losses refers to the rule that when the compensating oblige gains benefits based on the same cause of compensation for the damage,he should deduct the benefits from the damaged to determine the scope of compensation for damage.The rule of offset of gains and losses is not explicitly stipulated in the Tort Liability Law of our country,but it is generally applied in judicial practice.In order to apply the rule of offset of profits and losses,three requirements should be met: first,the establishment of a debt for damages.Damage is divided into property damage and non-property damage.Non-property damage mainly refers to spiritual damage.In the field of spiritual compensation,although there is a need for application in theory,there is no possibility of practical application.Secondly,the rule of offset of profits and losses can only be applied if the victim has interests,and only the compensating obligee obtains interests which can be deducted.The deductible interests include: positive interests and negative interests.Thirdly,the relationship between the damage and the benefit must come from the same fact of damage,and there must be a causal relationship between the two.In order to avoid the wide scope of causation,the theory of equivalent causation adopted in China is amended according to the purpose of laws and regulations.As for the theoretical basis of the application of the rule of offset of profits and losses,there are two theories in the academic circles: the theory of difference and the theory of prohibition of profit.From the perspective of the legislative concept of Tort Liability Law,the idea of prohibiting profit to prevent extra profit is in line with the legislative concept of balancing the two polar interests and filling the damage function of our tort legislation,and the calculation method of prohibiting profit is more concise,which is conducive to the operation of practice.Loss offset and negligence offset are easy to be confused in judicial practice.The differences between them are mainly reflected in the following aspects: constituent elements,the subjective state of consideration,and the sequence of application.When calculating the conflict between loss offset and negligence offset,based on the principle of "damage must occur before distribution",the calculation of loss offset is carried out first,then the calculation of negligence offset is carried out on the basis of it,and the amount of damage compensation is finally determined.The application of the rule involves two aspects: first,the initiation of the rule should be advocated by the parties themselves.In the application of the rule,the judge's position is neutral and can not be invoked by the judge on his own initiative.Secondly,in the application of the rule of the balance of gains and losses,judges need to fully exercise the power of clarification,that is,the judge's guidance to the parties and the clarification of related issues.Although the rule of the balance of gains and losses has not been established in our civil legislation,it is widely used in judicial practice.On the basis of analysis and summary,this paper first combs the current legislative situation of the rule of the balance of gains and losses in our country,summarize the previous research results,refers to the theoretical and practical experience of various countries,and puts forward the author's own suggestions on the legislation of the rule of the balance of gains and losses.