On The Scope Of Compensation Of Liability Contracting Fault

As an important system in China’s civil law,the liability system for contracting fault is widely used in trial practice.This paper presents the basic situation of the judicial application of the scope of compensation for contracting negligence in the form of charts by selecting cases of disputes over the liability for contracting negligence in judicial practice,and summarizes the thinking of the court in determining the liability for contracting negligence.It is found that the differences in the specific application of the scope of compensation for contracting negligence in judicial practice mainly focus on three aspects:whether the inherent interests belong to the object of compensation for contracting negligence,whether the indirect losses of trust interests belong to the scope of compensation for contracting negligence,and whether the upper limit of compensation for contracting negligence should be limited to the performance interests.There are important theoretical,legislative and judicial reasons behind these differences.From a theoretical point of view,there are disputes in academic circles about the object of compensation,the scope of compensation for damages caused by reliance interests,and the upper limit of compensation,which leads to the judges who take relevant theories as the reference for reasoning.From the legislative point of view,China’s Civil Code only stipulates the liability for contracting fault in principle,and lacks systematic and meticulous norms on the object of compensation,the scope of compensation and the upper limit of compensation,which leads judges to exercise their discretion to decide the scope of compensation.From the judicial point of view,the calculation of indirect loss of trust interest lacks judicial guidance,which leads to confusion in the calculation of trust interest loss in local courts.With regard to the dispute over the object of compensation for contracting negligence,it should be clearly stipulated in legislation that the object of compensation for contracting negligence should be limited to the loss of trust interests and not include the loss of inherent interests,which can be more effectively protected through tort liability.The dispute about the scope of loss of trust interest,whether it is the loss of trust interest in German law or the loss of trust interest in American law,essentially contains indirect losses.The loss of trust interest in China should cover indirect losses,but the conditions for the establishment of indirect losses should be carefully determined,and the scope of compensation for indirect losses should be reasonably defined through the application of predictable rules,impairment rules and profit-loss balance rules.When calculating indirect losses,the calculation criteria can be determined according to different contract types.In the housing sales contract,the value-added income of the house is mainly used as the calculation basis,and in the labor contract,the wage level promised by the new employer is mainly used as the calculation basis,and the principles of fairness and good faith are used as the general standards.With regard to the dispute over the upper limit of liability for contracting fault,in general,the scope of compensation for contracting fault should be limited to the performance interests,but when the liability of the contracting fault is strong,the scope of compensation can be free from the performance interests.