On Compensation For Damage Of Available Interests In Tort Law

According to the different properties of property in tort law,property damage can be divided into the damage suffered and the loss of interest,the loss of interest can also be the loss of interest,usually refers to the amount of existing property should be increased but not increased.China's tort law does not distinguish between damage and loss of interests,but has long been used to divide property losses into direct losses and indirect losses.It should be said that the connotation of obtainable benefit loss and indirect loss is not consistent,and the content they point to is also different.The external manifestations of the loss of available interests mainly include two types.One is the loss of available interests caused by infringement of property rights and interests,such as the loss caused by suspension of operation,the loss of profits caused by infringement of intellectual property rights or unfair competition.The second is the loss of available interests caused by the infringement of personal rights and interests.As one of the important concepts in modern tort law,reachable interest has rich connotation,which is related to the hot discussion of opportunity loss,pure economic loss and loss of use interest of things in comparative law to some extent.Can get profit loss as part of the property damage,should compensate,this is not only implement the principle of full compensation,also accord with the concept and purpose of tort damages,the victim back to the state before the tort has not occurred,but opportunity loss,pure economic loss and the use of the loss of interest due to its own personality,in practice it is hard to get compensation.China's current tort law does not make clear provisions on the loss of available interests,the lack of uniform application of legal rules,resulting in the practice often appear with the same case with different judgments,the same case with the same judgment but the judgment reasons are varied phenomenon.In terms of comparative law,for example,Germany,France,Italy and other civil law countries have stipulated in their civil codes the forms of damage including the loss of available interests,especially in Germany,it is stipulated in the general provisions of debt law,that is,whether it is the debt of contract or the debt of tort.In view of the fact that China is currently engaged in the compilation of the sub-provisions of the civil code,in the tort liability compilation,as in the contract law,it is required to stipulate in principle that the loss of available interests should be compensated,so as to provide legal support for judicial practice.Because can get profit loss have the fixed characteristics of future,so what can get profit loss in confirmation shall indemnify,need to limit its causal relationship,but also to consider the offender's subjective fault a bear the liability for damage,if the offender due to intentional tort,shall bear all damages,of course,in case of negligence of the offender to guarantee fairness and justice,is with the aid of predictability rules,to confirm whether the offender shall bear the responsibility and the responsibility scope.Damage the interests of confirmation will be calculated on the basis of the occurrence can get profit losses,with concrete and abstract calculation method of subjective-objective calculation method for standard,consider each of the cases of infringement of personality,and provide evidence according to the victim,the judge with discretion and discretion principle to confirm the infringer shall bear can get profit loss amount.