The Rule Of Gains Offsetting The Losses In Tort Compensation Law

Compensation for damage is the core of civil liability,which runs through all parts of civil law.In the compensation for damages,there are two main problems that need to be solved by law,one is the reason for the occurrence of the compensation for damages(the reason for the establishment of liability),the other is the content of the compensation for damages.The latter problem mainly includes the method of compensation for damages and the scope of compensation for damages.But in practice,the victim may also get certain benefits when he is damaged.At this time,the determination of the damage size of the victim is affected by the benefits he obtains.Whether to allow the victim to obtain benefits is not clearly stipulated in the current law.The object of this paper is one of the most important legal rules in the compensation for damages-the balance of profit and loss.As a rule of fair distribution of the benefits brought by the damage events,the research on the legislation,judicature and theory is very weak.The innovation of this paper lies in the renewal of the theoretical basis of the balance of profit and loss,the future development trend of the function of tort law,the definition standard and type of "interest" in the balance of profit and loss,and the type of the balance of profit and loss.At present,the current situation of the balance of profit and loss in our country is not optimistic.The academia and judicial practice generally agree with this rule,but the legislation is in a blank state.The only provisions are also in judicial interpretation and correspondence,and the low level effect is difficult to be used as the basis for operation in practice.There are many types of cases involved in judicial practice,and the application is confused.This paper explores the problems of the application of the balance of profit and loss in our country and the underlying reasons.First,the defects of the traditional theoretical basis.The principle of complete compensation only focuses on the compensation function,but ignores the function of prevention and punishment.However,the future development of tort law is bound to be the coordinated development of compensation,prevention and punishment functions.The other is that the traditional rule of opposites ignores the purpose of laws and regulations,and cares too much about the causal relationship between damage and interests.There is little research on whether the opposites meet the purpose of laws and regulations,and whether they maintain fairness and justice,which is obviously at the end of the day.Therefore,this paper proposes that the theoretical basis of the balance of profit and loss should be updated,which is in line with the intent of tort law and the future development direction of the function of tort law.The new theoretical basis pays attention to the function of prevention and punishment,and allows the victim to benefit under certain circumstances,so as to achieve the legal effect of not exempting the victim from liability improperly.In the rule of offsetting,we should first base on the relative causality,and judge whether it is in line with the double standards of the law.After the renewal of the theoretical basis of profit and loss offsetting,this paper also puts forward the specific ideas of designing profit and loss offsetting system for reference.As the name implies,it is necessary to determine the scope of damage and the definition of interests in practice,and finally offset each other.The standard of interest definition is the innovation of this paper.The concept of interests is diverse,so it is difficult to determine which interests can be offset in judicial practice.This paper puts forward that certainty,tradability,acceptability and universality should be taken as the criteria of interest definition in the application of profit and loss offsetting.Finally,the German general said that "it is not easy to explore the purpose of laws and regulations,so we should establish types of important and key cases" to help reduce the complexity and uncertainty of judgment when the rules are specifically applied.This paper also classifies the sources of profit and loss,and makes a typological study on the application of offsetting profit and loss.In view of the types of disputes in judicial practice,this paper makes a reasonable explanation,and studies the types of cases that are not involved in judicial practice but may be applicable to the offset of profit and loss.In order to have a comprehensive understanding of the theoretical basis and practical role of the issue of offsetting profit and loss.