On The Application Of The Rule Of Offsetting Profits And Losses

Profit and loss offset is an important application rule of the damages law,which refers to the rule that the right holder of compensation has benefited from the occurrence of a damage accident,and the obligor of compensation can claim that the benefits obtained are deducted from the amount of damages.There are three main theoretical theories for applying the profit and loss offset rule.The first is the balance theory,which focuses on the difference between the overall property status of the victim before and after the damage accident,that is,the actual loss of the victim.The second is the prohibition on gains,which is widely accepted because it emphasizes that victims are prohibited from obtaining additional benefits and follows the principle of leveling.The third is the teleological basis,but because of its one-sidedness,there may be no need for existence.In comparison,the aforementioned two theories are more appropriate.At present,China's basic laws have no relevant provisions on the rule of profit and loss.There are only two judicial interpretations that determine the scope of damages compensation in the field of contract law.The rule of profit and loss is clear.From the research methodology,compensation should be applied.Type analysis of the benefits obtained by the right holder can be roughly divided into the benefits obtained by the payment of a third party,the benefits obtained by the victim's behavior,the benefits obtained by the damage event,and the objective benefits.There are benefits to help regulate judicial application.When conflicts are calculated based on the negligence offset and the profit and loss offset,the profit and loss offset rule should take precedence over the negligence offset rule.The scope of damages is determined first,and then the issue of the share of the losses of the victim and the offender is discussed.The amount,which is based on the principle of "there must be damage before it can be distributed later",is in line with the basic logic,and can also ensure the fairness of the referee's results.With regard to the two prerequisites for the application of the profit and loss offset rule,the first is the determination of the right holders of compensation.The deductible benefits should have certain characteristics of certainty,tradability,acceptability and speciality.The subject who has harmed and obtained benefits should belong to the same person.Second,there is a causal relationship between damage and interest,which is also a key element of application.There are three main criteria for determining: the theory of profit and loss,the theory of equivalent causality,and the purpose of regulations.The theory of profit and loss is the strictest judgment of causality,which leads to the limitation of the application of the rule of profit and loss offset in practice,so this theory has limitations.The rather causality theory emphasizes the objective possibility between the occurrence of damage facts and the gain of benefits,which can make up for the shortcomings that the same source theory of profit and loss leads to the application of rules that are too narrow.However,because the "equivalent" standard is difficult to define,there is no uniformity applicable to the causal theory.The purpose of laws and regulations focuses on the purpose of laws and regulations,to a certain extent,it can make up for the lack of ambiguity in the content of the causal theory.However,because it overemphasizes the purpose of regulations,it is easy to ignore the causal relationship at the objective level,so it completely replaces any theory.In the process of applying the profit and loss offset rule,it is necessary to consider elastic factors,that is,the principle of fairness,the principle of good faith,and legal policies.The principle of fairness is the basic principle of civil law,and the legitimacy of the rule of break-even is precisely because it meets the basic legal principles of the principle of fairness.In principle,the victim shall not be judged to have an interest against the wishes of the victim,but if the victim has obtained the substantial benefits that he originally expected to obtain,he may be deducted from the loss.This is the embodiment of the principle of good faith in the application of the profit and loss balance rule.Taking legal policy as a value consideration for the application of the profit and loss offset rule,while realizing fairness and justice in specific cases,it can also ensure the value stability of the law.