On The Apply Of Break-Even Role Of Profit And Loss In Tort Compensation

With the continuous development of market economy,social life is becoming more and more complex.Torts have been increasing in recent years,and the type of damage presents complex and diverse characteristics,which lead to the tort compensation attract more and more attention from society.After torts occur,the victims can get compensation not only from the inflicter,but also from the social assistance,insurance compensation,and the third person,which lead to the problem on how to balance the interests between the victim and inflicter.It is the break-even role of profit and loss that can balance the interests from damage incident,therefore it is gradually becoming a hot topic,attracting widespread concern.Break-even role of profit and loss plays an important role in accurately determining the scope of tort compensation,however,it is not incorporated in legislation in our country and it is only mentioned in three judicial interpretations.In fact the break-even role of profit and loss in tort compensation is still a blank at present,which leads to chaos of judicial practice and causes many problems.The author makes full use of the professional knowledge of law to analyze the problems of the break-even role of profit and loss in tort compensation and the application of break-even role of profit and loss in different situations by causal analysis,empirical analysis,comparative analysis and other research methods,and puts forward reasonable suggestions on the application of the break-even role of profit and loss in tort compensation.This article is divided into four parts.Part one puts forward questions.The problems existing in the practice of the break-even role of profit and loss in tort compensation are introduced by two cases.These problems exist not only in legislation but also in justice practice.Part two analyzes the theory of the application on the break-even role of profit and loss in tort compensation.This part is formed with four points.The first point introduces the connotation of the break-even role of profit and loss;the second part analyzes the theoretical basis of the break-even role of profit and loss,such as differenzhypothese,bereicheungsverbot and teleological explanation.The third point explains the necessity of the break-even role of profit and loss.The last point sums up the conditions of applying the break-even role of profit and loss,providing evidence for judgment in tort compensation cases.Part three analyzes the application of the break-even role of profit and loss in the specific situations.After studying whether the break-even role of profit and loss should be applied in tort compensation under specific situations,the author puts forward new views.Part four puts forward the suggestions on the application of the break-even role of profit and loss in tort compensation.For legislation,the author suggests incorporating the break-even role of profit and loss into the Tort Liability Law;for justice practice,the author suggests refining the application of the break-even role of profit and loss by the judicial interpretation,and suggest the judge invoke the rule actively.The author thinks that the break-even role of profit and loss plays an important role in the tort compensation.The article aims to analyze the problems in the practice of the break-even role of profit and loss,on the basis of which put out suggestions,decide which interests should be deduced in the practice and study the application of the break-even role of profit and loss in specific situations.