Research On The Copensation Of Loss Of Available Benefits In Tort Law

With the deepening of reform and opening up,the development vitality and endogenous driving force of the market have been enhanced,and the types of property have become increasingly diverse.Based on property,people can not only obtain practical benefits,but also available benefits.When a civil subject suffers a loss of obtainable interests,whether and how the loss can be compensated in tort law becomes a problem worth thinking about.Protecting the legal rights of civil subject is the civil law should be,and can get profit loss compensation is part of the property damage compensation can not be ignored in the available profit loss gives compensation on tort law is not only beneficial to provide more comprehensive protection of the victim,as well as to improve and enrich the property rights system of compensation.However,in China’s current legislation,the provisions of compensation for the loss of the obtainable interest against the infringement of property rights and interests are not perfect,and there are many controversies in judicial practice.Therefore,in the implementation of the Civil Code,it is particularly important to construct the compensation for the loss of recoverable interests.This paper can get profit loss compensation as the center,through the analysis of the system in legislation and judicial practice,the problems of using the experience of foreign legislation and judicial practice,comparison study method,empirical approach and normative analysis,the improvement of the system of our country can get interest infringement damage compensation and its applicable law put forward its own views.In addition to the introduction and conclusion,this paper is divided into five parts,as follows:The first part mainly defines the compensation for the loss of recoverable interest.The loss of recoverable interest is equal to the indirect loss.Based on the different understanding of the loss of obtainable interest at home and abroad,it is concluded that the loss of obtainable interest is equal to the indirect loss,that is,the loss of property right or property right determined in the future due to the occurrence of the damage fact.According to the concept,the property,future and deterministic characteristics and different types of the loss of recoverable interest are put forward.The second part mainly discusses the current situation and existing problems of the system of compensation for loss of obtainable interests in legislation and judicial practice.First,Our country about the violation of property rights can get profit loss compensation rules mainly has "the farm","law" the relevant law and on the property of ship collision and touch cases the regulation of damage compensation "," on the application of law of road traffic accident damage compensation cases,the explanation of some issues such as the provisions of the relevant judicial interpretations.However,these laws only support the compensation of recoverable loss of interests from a specific field,without universal applicability,there are certain deficiencies,can meet the needs of judicial practice.However,judging from the judicial practice,the courts have great differences on the compensation for the loss of the recoverable interest of the infringement of property rights and interests,which are mainly manifested as the disunity in the understanding of the compensability,the disunity in the conditions of compensation and the disunity in the calculation standard.The third part mainly expounds the legitimacy and limitation of the loss of accruable benefits.This paper analyzes the legitimacy of compensation for the loss of recoverable interest through three dimensions of theoretical basis,foreign legislative reference and legal interpretation method,and holds that compensation for the tort of damages of recoverable interest should be recognized by national law.At the same time,due to the future of the loss of obtainable interests,the complexity of judicial practice and the unfairness of the full compensation principle,the compensation must be restricted by establishing strict compensation conditions and exploring the exceptions of the full compensation principle in the application of the case.The fourth part mainly discusses the conditions of compensation for the loss of profit available.First,by referring to the foreign legislation,"reasonable certainty" is taken as the compensation standard for the loss of obtainable interest,and the specific application of this standard is analyzed in combination with the typical obtainable interest loss existing in the practice of our country.Secondly,the causality is taken as the criterion to determine the scope of compensation for the loss of interest.Finally,the pure economic loss interest and opportunity loss are selected for separate demonstration.The fifth part mainly expatiates the determination of the amount of compensation for the loss of the available interest.In terms of the calculation standard of the amount of compensation for the recoverable loss of interests,the subjective standard should be the main standard and the objective standard should be the supplementary standard.In terms of the calculation method of the loss of obtainable benefits,formula method,difference method,profit compensation method,analogy method and discretionary method should be adopted.As for the calculation benchmark of compensation for the loss of recoverable benefits,it is necessary to quantify the loss of recoverable benefits based on the conclusion of oral argument.Still should set off with negligence set up,profit and loss set up principle to undertake the limitation of amount finally.