Study On The Compensation For The Loss Of Contracting Opportunity

China's market economy is more and more developed,trading activities are on the rise and transaction process is gradually trending dynamic and complex,the long-term nature of the transaction and the market environment of variability,so that one party in order to pursuit of their own interests to maximize,choose to violate the original agreement,thereby causing property damage to the other side.Whether and how to compensate for the loss of contracting opportunity have been controversial and deserve in-depth study,and the purpose of this paper is to demonstrate that the loss of contracting opportunity should be compensated,the constituent elements of compensation and how to calculate and limit the loss of contracting opportunity in the course of specific operations.Hope to provide some ideas and help for the solution of this problem.There are six parts in this article.The first part is the basic theory of the loss of contracting opportunities.This paper introduces the origin,concept,characteristics and relationship between the loss of contracting opportunity and the fulfilling interests,in order to clarify the nature of the loss of contracting opportunity and lay the theoretical foundation for the determination and calculation of the loss of the contracting opportunity.The second part is the analysis of the current situation of the system of compensation for the loss of opportunity.In terms of legislation,the contract law of our country lacks clear provisions on indirect loss compensation,and the scope of cases applicable to judicial interpretation is limited,so it is difficult to make up for the lack of laws.Theoretically,there is a great dispute about whether to compensate for the loss of contracting opportunity.In judicial terms,this paper empirically analyzes the specific situation of compensation for contracting opportunity loss in judicial practice,taking the 60 cases that have been the focus of dispute over the loss of contracting opportunity in the past ten years.Then the sample cases are divided into two groups,which count the different attitudes of our judicial practice towards the loss of contracting opportunities,and summarize the reasons for the court's support and the final amount of the decision and the reasons for not supporting each other.It is also found that in judicial practice,there are different standards of adjudication,the specific amount of compensation for the loss of contracting opportunities mainly depends on the judge's experience judgment and discretion,high subjectivity,high appeal rate and other issues,and analyzed the causes and harms.The third part is the necessity of the compensation for the loss of contracting opportunity.It is of great significance to carry out the principles of good faith and fairness in civil and commercial law and to maintain the balance of interests between the parties and the order of market transactions.The fourth part puts forward the constituent elements of the loss of contracting opportunity,with a view to establishing a uniform criteria for the determination of contracting opportunities.First,there should be certainty in the loss of contracting opportunities.There is a great deal of certainty in including the relevant contractual opportunities and there is a real loss of opportunity to contract.In terms of proof liability,the damaged party's burden of proof should be reduced moderately in order to fully compensate the injured party for the damage.If the injured party can prove that the loss suffered as a result of the loss of the opportunity to contract is objective,it shall be provided with relief and shall not be denied relief just because it has not proved a specific amount of the loss.The injured party must then waive other possible contracting opportunities on the basis of reasonable trust.The emphasis is on rationality,and its judgment criteria are the general understanding and concept of the general public.The second is causation,and there must be a direct causal relationship between loss of contracting opportunity and reasonable trust.Finally,the claimant for compensation is subjectively at fault.The fifth part is the method of calculation and the necessary limitations on the loss of contracting opportunities.The uncertainty of the amount of loss of contracting opportunities is also the main reason for the controversy in practice.Therefore,this paper combines theory and judicial practice to put forward several feasible calculation methods.In addition,in order to prevent one party to bear excessive responsibility leading to the imbalance of interests,the amount of compensation cannot be higher than the performance interests,and need to pay attention to avoid duplication of compensation,that is,should be removed from the necessary transaction costs Consideration should also be given to the rules of compensation for the fault of the right holder and the profit-loss offset rule,and in the absence of any better way to determine the amount of the loss,the other party's profit-getting may also be used as a reference to determine the amount of compensation in order to balance the interests of both parties.The sixth part is the conclusion and comment on the civil code.It is suggested that the civil code provide for compensation for loss of contracting opportunity.