| The principle of Full Compensation is centered on making up for the victim’s damage.It aims to achieve Full Compensation for the victim’s damage and it is one of the core principles in the field of tort damage compensation.The application of the principle must be based on the establishment of clear liability and the determination of damage.Only when the liability is established and the damage is determined can the scope of damages be determined and the principle of Full Compensation can be applied.The different rules of responsibilities establishment and the scope of damage will have an impact on the scope of final compensation,but no matter what responsibility is established or the scope of damage determination,as long as the scope of the final damage is determined;the indemnity is required to take his responsibility according to the determined scope of damage.That’s all the application of the principle of full compensation.The principle of Full Compensation becomes the guiding principle in the field of tort damage compensation because it can realize the damage compensation to the victim and enable the parties to achieve the optimal duty of care.But at present,in some specific cases the application of Full Compensation will violate the principle of fairness.Therefore,many scholars have proposed that the principle of FullCompensation can be appropriately broken or amended;There also have some scholars’ article which based on breakthrough the principle of full compensation.In these articles,it is found that some scholars have deviations from the understanding of the meaning of the principle of Full Compensation.They mistakenly equate the revision of the rules within the scope of liability determination and damage determination directly into the breakthrough of the principle of Full Compensation.This reflects to some scholars misunderstanding the concept of the principle of Full Compensation.When the principle of Full Compensation is applied,the scope of the victim’s damage must be determined and clarified.Although the determination rule of liability,the determination of damage and the principle of Full Compensation all belong to the contents of the damage compensation system.The amendment of the liability determination and damage determination rules will directly affects the establishment of liability and the scope of compensation.That has not direct impact on the principle of Full Compensation.Therefore,while researching on the breakthrough of the principle of Full Compensation,it is necessary to clarify the above concepts.For the real breakthrough situation of the Full Compensation principle;it can be divided into increase and decrease the compensation amount of the actor.Among the increase situation,the typical is punitive damage.For the breakthrough in this direction,both the extraterritorial law and Chinese scholars maintain the same conclusion that they do not consent that punitive damages will be the research focus of the principle of Full Compensation,so this article will not repeat.For the decrease situation,the most typical performance is the Liability reduction clause of the European continent and many countries and regions.The legislation mainly includes the reduction of livelihood and the reduction of fairness and consideration of property status.Different legislative models does not completely fragmented.For example,the livelihood itself also contains fair considerations;property status is one of the unavoidable considerations of livelihood considerations.Therefore,there is a cross between different legislative models.The concept of fair discretion can actually cover the other two legislative expressions and the scope of application is even moreapplicable.The case of judicial practice in China shows that China also has the necessity of establishing a liability reduction system.Combined with the analysis of legislative texts and practical cases,China can draw on the legislative model of fair discretion.At the same time,the liability reduction is a public law intervention in private law,it is also a breakthrough in the basic principles.Therefore,in the application,it is necessary to maintain a more cautious attitude by clearing of the system’s preconditions,standards and application with similar functions,etc.In order to make better guide the judicial practice,we should make more elaborate on specific issues and clarify the boundaries of the system.In particular,the first part is the introduction,which mainly introduces the topic selection,research significance and the current research situation of other scholars.First we should clarify the principle of Full Compensation’s position and role in the whole system of tort law.It is cornerstone principle of the damages.However,China does not have a clear definition of the principle of Full Compensation;most understanding about the principles relies on the supplement of the doctrine.So,the doctrine should be correct and scientific.Therefore,when there has deviation or misunderstanding,it needs to be corrected in time to prevent worse consequences.This is the first starting point of this article.The second will research the real breakthrough of the principle of Full Compensation and the specific implementation issues.The articles structure will be expanded in the following order:The first chapter,the main content is to clarify the connotation of the principle of Full Compensation.It is the responsibility of the infringer as long as it is responsibility is established.The scope of liability is the victim’s total compensable damage.Secondly,we will know the principle of compensation is widely applied because it conforms to the basic concept of damage filling and adheres to the equal legal status between the parties.In addition,the principle of Full Compensation can also urge people to achieve optimal duty of care,insisting that Full Compensation is also a modern legislation that distinguishes between civilian and criminal.Contracting with the rules of Responsibility and damage determination,the application premise of the principle is further examined.The principle of Full Compensation is relative to theestablishment of liability and the determination of damage.Only the establishment of responsibility and the scope of damage all are determined,the principle of Full Compensation can only be applied.If the scope of compensation has not yet been determined,the amount of compensation cannot be determined,and it is even more difficult to talk about whether the compensation is complete.The second chapter,the principle of Full Compensation has above advantages becoming the guiding principle in the field of damage compensation in many countries and regions.However,in practice,the application of this principle without difference will also cause unfairness in some cases,such as the case based on the friendship behavior or the principle of Full Compensation affects the life of the Indemnity obligor.The principle is used as a tool to adjust the dispute of the party.When there is a problem with the tool,it should be considered to correct itself to better serve the society.Therefore,the principle of Full Compensation itself has the necessity and rationality of being broken or amended.Scholars have also made suggestions on the revision or breakthrough of the principle of full compensation.However,some scholars have found that some scholars have misunderstandings on the definition and positioning of the principle of Full Compensation.This article will analyze the current situation of non-actual breakthroughs based on the understanding of deviations in the form of enumeration in order to achieve the purpose of correct understanding of the concept of the principle of full compensation.If the concept of misuse of the principle of Full Compensation is not clarified,it will cause confusion in the concept and it is not conducive to subsequent research.Therefore,this paper analyzes the misunderstanding of the definition of the principle of Full Compensation in the current research.In the breakthrough in the principle of full compensation,punitive damages have been unanimously considered by the academic community to be the main direction because of it violate of the basic concept of damage.So the focus of this article will be on the downward breakthrough.That is,the issue of the application of the liability reduction.The Liability reduction clause has been confirmed by many countries and regions outside the territory.It is divided into specific measures based on livelihooddiscretion,property based and fair-based discretion.According to the current status of judicial practice,the scoping should be in the broader context of fair discretion.The Liability reduction clause is the public law’s involvement in private law.Its confirmation means that the victim waives part of his rights.Therefore,in order to balance of both parties,the implementation of the specific discretionary clause should be more cautious.The third chapter focuses on issues related to the implementation.For example,for applicable standards,the intentional and major negligence should be excluded;the specific circumstances should be determined in the form of a clear list and it should provide room for the addition of other situations.When the Liability reduction clause applies,the effect to the victim must be far less than the infringer,otherwise the Liability reduction clause will be excluded.In the applicable manner,the application shall be filed by the parties and the court shall determine it later.When applicable,it is also necessary to consider the coordination and cooperation between insurance and installment payment systems etc.The Liability reduction clause also should be supplemented adoption after above systems.Finally,in combination with the shortcomings of procedural law protection in China’s current legislation,the introduction of China’s discretionary reduction system is proposed,it can be confirmed as a separate clause in substantive law,so as to achieve the connection between substantive law and procedural law,and realize the better inter-party Fair. |
