Typed Study Of The Application Of The Profit And Loss Offset Specification

It could often occur when infringement of the rights and interests of someone also benefits the victim himself.As one of the rules for determining the scope of damages compensation,the profit and loss offset aims to distribute the benefits in the foregoing situations fairly and reasonably.On the basis of examining the historical origin of profit and loss offset,this article will explore its theoretical basis,clarify its constituent elements,and carry out a typed analysis of common problems in judicial practice.Firstly,In the part of introduction,I explored the historical origin of the profit and loss offset.Then,the specific application situation of profit and loss offset in comparative law and China's legislation was examined.From the perspective of comparative law,the general provisions of the rule of profit and loss were mainly adapted in Netherlands and Taiwan.However,in China's current law,no clear legal provisions can be found,there are three judicial interpretations that are related to it.However,in judicial practice,there are a number of cases of disputes that are related to it.Considering all above,I do believe that a comprehensive and in-depth study of the rule of profit and loss offset is really necessary.In the first chapter,I mainly analyzed and expounded the theoretical basis and constituent elements of profit and loss offset.In the part of constituent elements,I not only researched and discussed its substantive requirements,but also preliminarily constructed its procedural requirements.In the part of theoretical basis,I firstly analyzed and compared the "difference theory" and the "forbidden profit theory" of the traditional doctrine,and found out that these two theories would provide strong support for the application of the profit and loss balance.And they embody the principle of full compensation.Subsequently,I analyzed the new theory(i.e."teleological basis"),and found that the theory can not only provide a theoretical basis for applicating profit and loss offset,but also provide theoretical support for not applicating profit and loss offset.That is to say,in the new theory,the compensatory of damage purpose would apply to profit and loss offset,while the prevention of damage purpose would apparently not.In the part of the components of the profit and loss offset,it is generally believed that its physical requirements should generally include: a debt for damages,the benefit of the right holder,and the causal relationship between the damage and the benefits obtained.Given that the comprehensive analysis of academic viewpoints,I detailed and combed three of constituent elements.For the establishment of debts for damages,I believe that the rules for offsetting profits and losses should essentially be limited to the debts applicable to damages,but other special situations should also be given full attention and consideration.Regarding the interests of the right holder,I believe that the "interest" itself must meet some other conditions,that is,it must be an emerging interest,it must be an interest acceptable to the universal concept,and it must be the exclusive interest of the right holder.And the "benefits" and "damages" must be homogeneous.Regarding the considerable causal relationship between the damage and the benefits obtained,I analyzed two causal theories,"the theory of profit and loss sharing same source" and "the theory of considerable causality," in order of theory appeares.Explained and further proposed that in order to make up for the slightly rigid nature of the two theories mentioned above,the purpose of the regulations should also be fully considered to avoid situations that contradict the original purpose of the regulations when the profit and loss offset is applied.That is to say,for the constituent elements of the entity applicable to the profit and loss offset,four elements should be adopted.Subsequently,I also proposed a preliminary idea on the procedural requirements for the application of profit and loss offset,i.e.the application of the profit and loss offset should be based on the parties' claims,and the judge's right to use the right of interpretation should not be relieved.On the basis of clarifying the components of the profit and loss offset,I attempted to conduct a typed analysis and research on the application of the profit and loss offset by combination of judicial practice and typical cases in science.According to the difference in the source of benefits,it can be divided into the following two situations for analysis: one is to make a profit with a third party payment;the other is to make a profit without a third party payment.In the second chapter,I discussed whether the profit based on the third party payment can be applied to the profit and loss offset.The benefits obtained based on the third party's payment include the following three situations.That is,generous donations from third parties and social relief,commercial insurance and social insurance.Considering the third party's generous donation and social relief,I believe that the main reason for the third party's generous donation is the occurrence of the damage.Therefore,it should be considered that there is a considerable causal relationship between them.However,it is then necessary to verify its requirements for regulatory purposes,and the purpose of a third party's generous donation is not to reduce the liability of the obligor.Therefore,no deduction should be made for such benefits.Regarding the applicability of social relief to profit and loss,I believe that in terms of free transfer of property,social relief is not essentially different from the generous donation of a third party,except that its theoretical basis is the provisions of public law.Therefore,for the benefits brought by social relief,the profit and loss offset cannot be applied.Regarding the commercial insurance section,according to the different objects of insurance,I have detailed it into three types of situations: property insurance,life insurance and liability insurance.Regarding whether the benefits brought by property insurance can apply for offset of the profit and loss,there are different opinions in the academic field.I believe that considering the subrogation system stipulated in Article 60 of China's Insurance Law,we can know that in property insurance,the subrogation system itself excludes the applicable space of profit and loss.Regarding the benefits brought by life insurance,I believe that considering the special protection of life insurance and Article 46 of China's Insurance Law,such benefits should not be deducted.Regarding the benefits brought by liability insurance,I believe that considering typical cases in judicial practice,Article 76 of the Road Traffic Safety Law and the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Compensation Cases for Road Traffic Accidents Article 16 stipulates that the amount of insurance compensation paid by the insurer shall not be deducted from the total damages compensation,and the scientific basis behind it is not the subrogation system,but the result of the joint action of the establishment of the law and the constituent elements.In terms of social insurance,I detailed it into two situations: work injury insurance and universal medical insurance according to the different objects of insurance.Regarding whether the benefits brought by work injury insurance can be applied to offset the profits and losses,there are two different judgments in judicial practice.I believe that comprehensive consideration of the principle of prohibition of profits and losses and the welfare of social insurance,combined with China's "Work Injury Insurance Regulations" and other relevant regulations,this kind of benefits should be discussed accordingly.Regarding the benefits brought by universal medical insurance,I believe that,as far as the medical expenses in the universal medical insurance compensation treatment and the medical expenses in the tort compensation treatment are concerned,the compensation functions corresponding to the two items are of the same nature and function and both fill the same type of damage.There is no need to make repeated payments,and comprehensive consideration of China's "Social Insurance Law" and other relevant provisions,at this time there is room for application of the rule of profit and loss offset.In the third chapter,I mainly analyzed whether the profit or loss can be applied to the profit that is not based on the third party payment.The benefits obtained not based on the payment of a third party include the following three situations.That is to profit based on the actions of the victim,and to profit not based on the actions of the third party or the victim,and to profit based on the other party's compensation for the loss.In the part of the profit based on the victim's behavior,I believe that this benefit is mainly reflected in the benefits brought by derogation.In accordance with Article 10 of the "Guiding Opinions on Several Issues in the Trial of Civil and Commercial Contract Dispute Cases in the Current Situation"([2009] No.40)of the Supreme People's Court of China,in the compensation for damages,The benefits obtained through subsequent derogations should be deducted from the amount of losses,because no matter whether the derogations brought damage or benefits,they have a causal relationship with the occurrence of the damage event.However,if the efforts made by the right holder to reduce the derogation exceed a reasonable limit,then this part of the benefits should not be offset by profit or loss.In the part of the profit that is not based on the behavior of the third party or the victim,I detailed it into direct profit,the savings saved by the victim,the inheritance benefits of the survivors,and the benefits obtained from the accidental lucky event.Regarding direct profit,through the elaboration and analysis of typical cases in practice,I believe that under normal circumstances,this kind of benefits directly derived from the damage should be deducted accordingly.Regarding the expenses saved by the victim,it belongs to the benefits suffered due to the occurrence of the damage event,and has a considerable causal relationship with the damage event,and it is deducted from the evaluation in accordance with the purpose of the law.Regarding the inheritance interests of the survivors,it contains the protection and care of the heirs to their relatives,and the victims should not benefit from this.That is,from the perspective of legal ethics,the application of profits and losses to the inheritance interests of the survivors should not be offset.At the same time,it can be seen from the specific content of China's "Inheritance Law" that its normative purpose is not to reduce the liability of the offender.Regarding the benefits obtained from accidental lucky events,I believe that it is necessary to discriminate and analyze whether the damage and benefits conform to a considerable causal relationship,and then check it with the purpose of regulations.Under normal circumstances,the indemnity holder will not be blessed because of the damage.It can be seen that there is no considerable causal relationship between the benefit and the damage,and the offsetting of profits and losses should not be applied.In the part of profit based on the other party's compensation for the loss,I mainly discussed the value of the wreckage of the damaged object and the relationship between the application of the new generation and the old and the intermediate interest and the profit and loss offset.Regarding the value of the wreckage,I believe that the risk to the value of the wreckage is caused by the obligor.Naturally,the risk should be borne by the obligor,and the right to compensation should not be carried by the obligee Risks and Responsibilities of Debris Value Benefits.Therefore,the rule of profit and loss should not be applied to it.Regarding the issue of replacing the old with the new,I believe that although the resulting benefits are “forced gains” for the right holder,they should be deducted in consideration of factors such as fairness and justice,but taking into account the victim's under such circumstances,certain restrictions should be placed on the deduction of this benefit,that is,personal judgment should be considered.Regarding the issue of intermediary interest,I believe that,from the perspective of the constituent elements,the profits brought by it should be applied to offset the profits and losses.However,in China,the method of payment of damages is generally based on a one-time payment,with the exception of successive instalments.Therefore,in our country,it should be very difficult for the profit and loss to be applied to the intermediate interest.