The Study On The Benchmark Of Loss Calculation In Property Infringement

Article 19 of the Tort Law of the People’s Republic of China stipulates the method of calculating the loss in the encroachment on property,but the provisions of the article is too simple,and the practical sector for the calculation of property losses on the time benchmarks and price benchmarks are controversial,and the theorists have different views on the issue.This paper will summarize the referee practice and theoretical point of view on the issue,identify the differences between the problems,and then will be a specific analysis of the various issues.In addition to the introduction and conclusion,this paper is divided into four parts:The first part is about the investigation of current loss calculation benchmark in the infringement property.In terms of time base,at present the court usually takes the time when a loss occurs as time benchmark,but when the value of the infringing goods fluctuates greatly,there are some courts takes the time when dispute resolution as time benchmark or for the loss of the premium according to the specific circumstances to determine whether to compensate,and scholars generally believe that should take the time when dispute resolution as time benchmark.In terms of the price basis,our courts mainly calculate the property loss according to the objective calculation standard,but if there is a difference in price based on subjective criteria and based on objective criteria,there is still controversy over the rationality of calculating the property loss according to the objective calculation standard.Scholars generally believe that the market price should not be the only price basis,but the scholars did not in-depth study of other price benchmarks.At last,for other ways,except for the time benchmark other than the time when the loss occurred or the price benchmark other than the market price,it can also be understood that the cost of restitution will be treated as damages.The second part is the analysis of the time benchmark in the balance calculation method.The Tort Law of the People’s Republic of China provides that the time benchmark for calculating the loss is when the loss occurs.The time benchmarks in the comparison law includes both the occurrence of the loss and the settlement of the dispute.The main reason is that there are different understandings in the three aspects of damage theory,the scope of compensation and compensation principles.What does the concept of damage,when the infringement occurs,the price increase part of the dispute should be determined as the damage or loss of interest,as well as the tort law to take the principle of full compensation or limiting principle of compensation,these have a direct impact on the application of the time benchmark.Finally,the author will review the provisions of China’s tort liability law on the time benchmark,And finally concluded that China should not apply a unified time benchmark,but should be in accordance with the type of damage to the analysis,then to determine the different time benchmarks that should be applied.The third part is the analysis of the price benchmark in the balance calculation method.Article 19 of the Tort Law provides for the market price as the price benchmark for calculating the loss of property.However,there are cases where there is no market price or multiple market prices in the practice.In the comparative law,the calculation of the price benchmark for the loss includes both the subjective calculation criteria and the objective calculation criteria.The calculation of the two calculation criteria is not absolute,but can be supplemented and applied.The main problem in calculating the property loss when applying the objective calculation criteria is how to determine the price benchmark of the infringed goods when there are multiple market prices and the absence of market prices,as well as the specifics that should be taken into account when applying the subjective standard tocalculatetheloss situation.Finally,it will be clear that the calculation of property damage in China should be based on the objective criteria,subjective standards as an exception,and the market price standard is only the most typical objective criteria and not the only standard.The fourth part is the analysis of other calculation methods in the calculation of the benchmark.Infringement of property,in addition to the use of the balance calculation method to calculate the loss of property as compensation,but also can apply the cost of restitution as compensation for the amount of loss.The cost of restitution is an alternative to restitution,if restitution is possible and the feasibility,you can apply for the cost of restitution as the amount of compensation,but also under certain conditions to give priority to restitution.And the time benchmark and the price benchmark for calculating the cost of restitution should distinguish whether the restoration of the original state has actually been done.