Research On The Issue Of Compensation With New For Old

This article mainly introduces the occurrence and general handling rules of the new-for-old problem in damage compensation,and makes a categorized explanation based on the current judicial practice.The issue is mainly based on the principle of restitution and full compensation.When the old thing is damaged and cannot compensate with the old thing of equal value or the compensation is unreasonable to the victim,the victim shall use the method of compensating the new thing or the purchase amount of the new thing to perform its obligation of damage compensation,but the scope of the compensation obligation of the victim is limited to the old thing value,so the victim may benefit from damages.Regarding the theoretical basis of the deduction of the new for the old,this article combs the basic theories in domestic and foreign academic theories and precedents,and discusses the position of the deduction system and the specific doctrinal framework.Both the deduction of the new for old and gains offset the losses are related to the principle of forbidden profit in the law of damages,but they are different issues.This article is based on the principle of prohibition profit,with reference to the structure of improper gains,analyzes theories and judicial practices to arrive at the subjective and objective elements of deduction.Deduction elements must objectively determine that the victim has a gain in property.Subjectively,gains cannot be classified as "forced gains",that is,deductions are reasonable to the victim.For the specific judgment of the two elements,the former needs the assistance of the theory of difference,and the latter is based on the idea of prohibiting gains,subjectively determining whether there are gains to be deducted according to the economic plan of the victim.The interests that violate the victim’s economic plan are forced gains and will not be deducted.After that,this article analyzes the calculation method of the deduction and the execution method of the deduction.According to different forms of damage,this article categorizes the specific application of the deduction of the new for old in different case types,including repair or replacement of parts,painting,compensation with new properties,and reconstruction of buildings.The analysis methods of comparative and positive methods are adopted,and the purpose is still to discuss the occurrence,applicable elements and applicable rules of compensation the old with the new in the four case types.