Profit And Loss Offset Rule In Tort Damages Compensation

Profit and loss offset rule refers to when the infringement or breach of contract causes actual damage to the victim and causes debt of damage,if the damage also brings certain new interests,this part of interests shall be deducted when calculating the compensation amount,and the debt of damage shall be offset with the new interests to give the final compensation amount.The characteristics of the profit and loss offset rule lie in the fact that after the debt for damages is established,what is required to be deducted is the benefits arising from the same reason,the size and scope of the compensation result to be determined,etc.The profit and loss offset rule has a long history and is also applied in the continental law system and the common law system.Although there is no clear stipulation of this rule in our country's law,it is also widely applied in practice.However,it is precisely because our country lacks corresponding provisions for the above rules in the law that there are some disputes on the theoretical basis and scope of application of the profit and loss offsetting rules.In terms of theoretical basis,the rule of profit and loss offset mainly comes from three theories,namely,difference theory,prohibited profit theory and teleology theory.In the face of complicated cases in practice,prohibited profit theory can be taken as the main body,and the problem of profit and loss offset in cases can be solved by combining teleology theory.There are three main elements of the profit and loss offsetting rule: first,the establishment of debt for damages;Two,the right to compensation for the same fact and benefit;Third,there is a causal relationship between the damaged debt and the interests received.The development of the theory of causal relationship between damage and received interests has gradually changed from the "profit and loss homology theory" to the "equivalent causal relationship theory" and then to the "legal purpose theory" as an authoritative theory.The "legal purpose theory" should be used as the basis for judging the causal relationship,and the "relative causal relationship theory" can be used as a supplementary principle for judgment.The scope of application of the profit and loss offset rule mainly includes the following four problems: first,in the case of forced gain,if the gain is against the victim's subjective will,but the victim accepts the benefit,the benefit can be deducted.Second,in the case of personal income tax,the purpose of preferential treatment and relief is to support vulnerable groups and encourage transactions.Second,tax relief is of a public nature and should not be used to compensate for the damage to personal interests by spending on public interests.Therefore,it should not be deducted.Third,in the case of insurance benefits,property insurance should not be deducted,and personal insurance,medical insurance and industrial injury insurance in commercial insurance should be deducted.