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Research On The Application Of The Principle Of Complete Compensation For Tort Damage

Posted on:2020-08-14Degree:MasterType:Thesis
Country:ChinaCandidate:H B XieFull Text:PDF
GTID:2416330575989075Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Under the premise that the principle of complete compensation is the basic principle in the field of tort damages,the key that determine whether the scope of compensation for tort damage is reasonable is the application of the principle of complete compensation is reasonable.Under the premise of the establishment of tort liability,the enactment that the causal relationship between tort and specific damage is used as the only basis which is used to define the scope of damages is not only the core of the principle of complete compensation,but also contains the risk of rigidity.In the perspective of composition of damage,owing to the necessary supplement of the theory of composition of damage,that contains the connection between the abstract damage and the specific damage of the composition of whole damage,and the distinction between the common factors and the special factors of specific damage,on the one hand,the principle of complete compensation is more reasonable;on the other hand,in the general application of the principle of complete compensation,having reasonable flexibility in the determination of fault,having more objective criteria in the judgment of causal relationship,furthermore,helping to find more clearly the necessity of compensation for complete benefits,the necessity of the subjective calculation of damage,and the necessity of the reasonable restriction to the subjective calculation of damage.Based on this,we can find that the application of the subjective calculation of damage should be reinforced in the field of property damage compensation,and the scope of application of the rule of "compensation for people who have different identities according to the same standard" should be expanded appropriately in the field of personal injury compensation in the practice of legislation and judicial of tort damage field of China.At the same time,in the perspective of composition of damage,we can discuss more systematically the necessity of the reasonable restriction to the application of the principle of complete compensation by means of the reduction based on considerations for livelihoods and the reduction based on the consideration of fairness.Furthermore,we can find that the reduction based on considerations for livelihoods and the reduction based on the consideration of fairness should both follow the following three basic premises:enforcing the principle of complete compensation,ensuring the stability of law,least negative effects to the holder of compensation right.Furthermore,the reduction based on considerations for livelihoods could be enforced only in case the three necessary conditions(which are the infringer has only slight negligence when he or she carried out tort,the infringer faces basic livelihood dilemma,the infringer there is not fault or there is only slight negligence in the event that led to his or her basic livelihood dilemma)are met;the reduction based on the consideration of fairness could be enforced only in case the infringer there is only slight negligence to the occurrence of damage event.When carrying out restrictive application of the principle of complete compensation,in order to ensure the reasonableness of the mitigation of damages,we should consider the following factors:the degree of compensation from insurance,the relief effect from civil procedures,the nature of damage,the economic status of the indemnity obligor and the holder of compensation right.Based on this,we can find that the reduction based on considerations for livelihoods should be established in substantive law,and the scope of application of the reduction based on the consideration of fairness should be expanded into the compensation to damage that is caused by the conduct containing the factors of kind condescend that is different from doing boldly what is righteous in the practice of legislation and judicial of tort damage field of China.
Keywords/Search Tags:Principle of complete compensation, Composition of damage, Application, Restriction
PDF Full Text Request
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