On The Application Of The Rule Of The Balance Of Profit And Loss In The Infringement Damage Compensation

Balance of profit and loss,also known as ‘offset of profit and loss',refers to when the claimant claims to obtain benefits while agreeing to the reasons for compensation,the indemnity obligor has the right to deduct the benefits obtained,so as to determine the rules of the scope of damages.The damages referred here mainly include infringement and breach of contract.In the judicial practice in China,the rules of balance of profit and loss are generally applied.However,there is no clear provision in the legislation in our country.In the reply of the Supreme People's Court on the case of ‘Zhao Zheng and Yin personal injury compensation',it is pointed out that the subsidy provided by the company of Zhao Zheng is the allowance for its employees and therefore cannot be deducted as the compensation of the damages suffered by the infringer,indicating that the judicial interpretation has provisions.After that,Article 10 of the Guiding Opinions of the Supreme People's Court on Several Issues Concerning the Trial of Civil and Commercial Contract Dispute Cases under the Current Situation and Article 31 of The Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Cases of Sale and Purchase Contract Disputes make rules for the balance of profit and loss in the compensation for infringement damages.It is intended to explore the legitimacy,applicable conditions and applicable methods for the application of balance of profit and loss.In the judicial practice,on the legal basis for the application of the rules for the balance of profit and loss,the balance theory is used to compare the actual property interests of the compensation right holder after the damage occurs and the state of the property that the compensation right holder should have before the damage occurs.The starting point of ‘prohibition of profitability' is to indicate the filling function of the rules for compensation for damages.However,the theories of these two doctrines cannot support such a situation in which the perpetrator obtains ‘interests',that is,it cannot provide a satisfactory explanation for the situation in which all applicable balance of profit and loss.In addition to the two well-known theories of ‘balance theory' and ‘prohibition of profitability',some scholars have proposed the theory of teleological explanation.The purpose of interpretation theory is one of the important methodologies of jurisprudence,which provides a theoretical basis for the application of the rules of balance of profit and loss and the application of restrictions in specific situations.Article 6 of the General Principles of Civil Law has clear provisions on the principle of fairness.With the continuous development of society,when the provisions of relevant laws in China are still not perfect,the principle of fairness,as an important basic principle of law,has gradually become the theoretical basis for the application of the rules of balance of profit and loss.In order to better apply the rules of balance of profit and loss in judicial practice,even if there are differences and some controversies in the specific application of each constituent element,there is not much controversy in the overall direction.Three conditions should be met.First,a debt for compensation for damages must be established,which is the most basic requirement for determining whether the rules for the balance of profit and loss can be applied in compensation for damages.If there is no compensation for damages,there is no room for balance of profit and loss.Second,the victim must be benefited,which is a necessary element for the application of the rule of balance of profit and loss,and is also a controversial element and difficult to judge.Without the benefits gained by the victim,there is naturally no problem of balance of profit and loss.Third,the most critical condition for the application of the rule of balance of profit and loss is that there is a certain causal relationship between damage and benefit.The damage or the benefit alone is not the inevitable conditions for applying the principle.The premise of applying the rule of balance of profit and loss is the causal relationship between the benefit and damage.With the development of history,the doctrine of causality about the applicable conditions of the rules of balance of profit and loss,resulting in the theory of homologous theory of profit and loss,the theory of causality,and the theory of purpose of regulation.However,these doctrines have their own advantages and disadvantages.They cannot be flexibly applied and have a narrow scope when applicable.The theory of causality and the theory of purpose of regulation should be applied together so that they can compensate each other for defects and work together in the whole process of applying the rules.In judicial practice,the method of balance of profit and loss,the money offset is a clear and convenient deduction method,and the scope of application is relatively wide.The method of money offset in property damage can be universally applied.In personal injury,many related damages can be expressed in the form of money,such as charge for loss of working time,medical expenses,transportation expenses,etc.,so there is also some room for the application of money in personal injury.The object offset is more complicated,and the scope of application is not as wide as the money offset.Generally speaking,object offset is mostly applicable according to the choice of the victim,because the victim has the right to choose monetary compensation or in-kind compensation when requesting the injurer for compensation for damages,and also has the right to choose whether to retain the damaged objects.Once the victim chooses inkind compensation without retaining the damaged objects,it is necessary to calculate it with the method of balance of profit and loss.