论损益相抵之适用

发布时间：2018-06-30 00:01

本文选题：损益相抵 + 损益同销　；参考：《华东政法大学》2015年硕士论文

【摘要】：本文主要介绍损益相抵规则之历史沿革,同时于立法司法现状之背景下,完善其构成要件,构建其常用案型。损益相抵可追溯至古罗马法及唐律,既存于英美法系与大陆法系。其植根于公平正义,以禁止得利思想作为其理论基础,同时亦是差额论计算必然之结果。于其发展史上,其从前依据相当因果关系之一般条款作裁判依据,而后为追求实质正义而转向个案评价。故其归责标准经历了损益同源说、相当因果关系说、规范意旨说之变迁。现今亦愈来愈注重对案型之续造。损益相抵虽多见于学者立法建议稿,但于我国大陆地区仍未明文化,其仅作为学说理论为裁判援引。类似的,德国民法典对此亦未明文规定,但其立法理由书说明此乃立法者有意为之。相反,台湾地区于世纪之交修正债法后,将损益相抵新增为第216条之一。司法实践上,各国家地区凡遇损害赔偿之案例,必于损害赔偿范围内考虑损益相抵。就构成要件而言,首先当然应存在损害赔偿请求权。但损益相抵之对象非仅于此。对委托费用请求权、雇员之逆求偿请求权、相邻关系之赔偿请求权及排除妨害请求权亦有适用。惟须注意的是,其不适用于履行请求权。另,损害赔偿请求权之成立要求存在损害,但于特殊情形如保险中,受害人处无财产损失,若因此不成立损害赔偿请求权将导致不公,此时便会因评价而认定一项损害,作为对差额说之修正,此即为规范的损害。此外,较之传统观念,关于利益亦须补充两点:利益之发生时间对适用损益相抵无影响;有时对他人之利益亦可抵扣。构成要件中的归责标准于绝大多数情形中为决定损益相抵之关键。其中损益同源说因果关系链选取较难,有时限定范围过窄。相当因果关系说具预测功能,可能导致悖俗,且依其获得之结果常不合理须修正。内在联系说因其学说不周延且判断标准模糊而未得到广泛支持。惟法规意旨说因个案评价臻于正义而更符合损益相抵之基本思想。损益同质性是常被学界忽视的话题,但其非常重要。虽然损害计算之依据为整体财产变动之差额说,但涉及损益相抵应将利益归于单个相关损害项目。同时,物质损害与精神利益、物质利益与精神损害间不能相互抵扣,此亦为同质性要求。此外,出于各国（地区）精神损害赔偿额高低不同,本文认为对精神利益能否抵扣精神损害仍须考量各国（地区）与民众期待,我国慰抚金数额本就不高,不适宜再对慰抚金进行精神利益抵扣。本文后半部分介绍损益相抵经典案型。返还因赔偿方式而生之利益是否属于损益相抵是极富争议的话题。尽管有诸多反对意见,其无法脱离损益相抵研究问题域。当回复原状中之溢价对受害人而言无可期待性时,其为强迫得利,无须返还。而当受害人实现溢价利益时,仍可依损益相抵,基于结算契约向赔偿义务人返还利益。关于回复原状中可能产生之剩余价值,应区分新生异种利益与原权利变更形态之同种利益。死亡之牛马作为新生异种利益,当其对受害人而言非不可期待时,原则上应有损益相抵。但受害人就交出死亡牛马所有权与折价返还利益有选择权。原权利形态变更之同种利益依台湾法实际上须进行价额偿还,德国法上由于回复原状优先,仅在回复原状不能时可主张价额偿还。采价额偿还方式时利益自始抑制损害,赔偿限于差价。此外,关于节约之费用应适用损益相抵无疑。人身损害中,奢侈型消费不应全部抵扣或全部不能抵扣,前者如伙食费,后者如旅游费。依损益同质性中的单项抵扣原则,亦能得出伙食费仅能抵扣一般生活标准部分。财产损害中之费用节省情形,如出卖人不履行或履行不能时,买受人节约受领费用,或出卖人瑕疵或迟延履行时,买受人因丧失使用机会而节约物之维持费用,或车辆损坏维修期间节约之维持费用与折旧,皆须抵扣。惟车辆维持费用可通过租赁一辆较低档次之车避免抵扣,而折旧却是在未租替代车辆时不可适用损益相抵。税收利益实为另一种形式的费用节约,但有特殊规则,当其利于受害人时,不可扣抵,当其无特殊目的时,原则上应支持扣减。替代交易之案型殊为重要。于履行利益赔偿中,出卖人不履行或瑕疵履行时,买受人进行替代交易之利益不可抵扣。买受人不履行时,应依出卖人身份而做区别。若出卖人为商人,则无抵扣。出卖人非为商人,实现市价增值之转卖利益应予抵扣;超越市价之转卖利益不予抵扣,但鉴于损益同质性,可抵扣二次缔约费用。在出卖人进行替代交易既实现增值又获得额外利润之情形下,考虑损益同质性,价值增长源于市场行情,故应先抵扣迟延损害。于迟延时发生涨价而标的物增值,此亦适用损益相抵。租赁中之利益类比买卖合同。惟于信赖利益赔偿中,买受人应返还转卖利益。除非其将损害赔偿请求权让与第三人,而此人恰好能返还原物。尽管遗产本金及利益依规范目的说应作区分对待,本文反对其抵扣。孤儿获得的扶养请求权不得抵扣,遗属再婚获得的新扶养请求权可予抵扣,但再婚婚姻破裂时可重启请求权,其故意放弃新扶养请求权可构成与有过失。互负扶养请求权情形中节约之抚养费不可抵扣,有悖道德。受害人自身获得之利益以不真正义务为限进行抵扣。第三人之捐助亦应依其目的决定是否抵扣。保险给付之问题域亟需厘清。财产保险中,保险人给付保险金后,受害人处应成立规范的损害,并将其损害赔偿请求权于赔付范围内向保险人转让,由保险人行使代位权。就转让方式,让予请求权说较法定债权转移说更适宜。对人身保险,不论其以储蓄保险或风险保险方式订立,其本金及收益皆不可抵扣。损益相抵须赔偿义务人进行举证,提出主张,但非行使请求权或形成权。在损害赔偿与利益皆为金钱之时,可直接抵扣。无法直接抵扣时,例外地赋予独立的结算请求权与留置权。当与有过失与损益相抵并存时,应先将利益抵扣于依与有过失赔偿请求权人应承担之部分,剩余利益方抵扣损害赔偿请求权。
[Abstract]:This article mainly introduces the historical evolution of the rule of profit and loss offset, at the same time, in the background of the legislative and judicial situation, it consummate its constituent elements and construct its common case type. The profit and loss can be traced back to the ancient Rome law and the Tang law, which exist in both the Anglo American law and the continental law system. In the history of its development, in the history of its development, it used to be based on the general provisions of the considerable causality, and then to the case evaluation for the pursuit of substantive justice. Therefore, its standard of attribution has gone through the same theory of profit and loss. Although the benefit phase is mostly found in the draft of the scholar's legislative proposal, it is still not clear in the mainland of China, and it is only quoted as the theory of the referee. Similarly, the German civil code has not been stipulated in the civil code. But the legislative reason book shows that this is the intention of the legislator. On the contrary, after the amendment of the debt law at the turn of the century, the profit and loss are added to the Taiwan land area. It is one of the 216th articles. In judicial practice, in the case of damages in every country and region, it is necessary to consider the profit and loss in the scope of damages. In terms of the constitutive requirements, the right of claim for damages should of course exist, but the object of the profit and loss is not only the right to claim, the claim of the employees' counterclaim, and the compensation for the adjacent relations. The right to claim and the right to exclude nuisance are also applicable. However, it should be noted that it does not apply to the right to perform the request. Furthermore, the claim for the claim for damages is damaged, but in a special case, such as insurance, the victim has no property loss, and if the damage compensation is not established, the claim will lead to injustice, and it will be identified by the evaluation at this time. As an amendment to the difference theory, this is a standard damage. In addition, compared with the traditional idea, the interest also needs to be added two points: the time for the occurrence of interests has no influence on the application of profit and loss; sometimes the interests of others can also be deducted. The criteria for imputation in the constitutive requirements are the key to the determination of the profit and loss in most cases. The selection of the causality chain of the middle and bad profit and loss theory is more difficult, sometimes the limit is too narrow. The equivalent causality has the predictive function, which may lead to the paradox, and the result is often unreasonable. The inner link says that the theory is not extended and the judgment standard is vague and is not widely supported. Only the statute intention is that the case evaluation is achieved by Yu Zheng. Meaning is more in line with the basic idea of profit and loss offset. The profit and loss homogeneity is a topic often neglected by the academic circle, but it is very important. Although the basis of the damage calculation is the difference of the whole property change, the benefit attributable to the profit and loss should be attributed to the individual related damage. In addition, this is also the same quality requirement. In addition, the compensation of mental damage in different countries (regions) is different, this article thinks that whether the mental interests can be deducted from mental damage still needs to be measured by the countries (regions) and the people. The amount of comfort gold in our country is not high, and it is not suitable for the spiritual interest of the comfort gold. The second half of this article is not suitable. If there are many objections, it can not be separated from profit and loss to study the problem domain. When the premium is not expected for the victim, it is forced to gain, and it is not necessary to return. When it comes to the benefit of the premium, it is still possible to return the benefits according to the profit and loss, based on the settlement contract to the compensation obligor. On the remainder value that may arise in the reversion of the original form, we should distinguish the same interests between the new dissimilar interests and the original form of change of rights. There should be profit and loss, but the victim has the right to choose the ownership of the dead horse and the return of the price. In fact, the same interest of the original right form changes must be paid in accordance with the Taiwan law. In addition, the compensation should be limited to the difference. In addition, there is no doubt that the cost of profit and loss should be applied to the cost of saving. In the case of personal damage, luxury consumption should not be completely deducted or all cannot be deducted. The former is like food fee, and the latter such as tourism fee. According to the principle of single offset in the profit and loss homogeneity, the food fee can only be deducted from the standard part of the standard of living. The cost savings of property damage, such as when the seller fails to perform or perform, or when the buyer saves the expense, or when the seller is defective or delayed, the buyer's maintenance cost for the loss of use, or the maintenance fee and depreciation for the maintenance of the vehicle during the maintenance of the vehicle, must be deductible. Only the maintenance cost of the vehicle can be maintained. The tax benefit is another form of cost saving, but there is a special rule. When it is beneficial to the victim, it should not be deducted when it has no special purpose. It should be supported in principle when it has no special purpose. The case of alternative transaction is important. In the performance of compensation, when the seller fails to perform or fulfil the defect, the benefit of the buyer is not deductible. When the buyer fails to perform, the seller should make a difference according to the identity of the seller. If the seller is a merchant, the seller is not deductible. The seller is not a merchant and the value added to the market value should be deducted from the seller. It is not deductible, but in view of the profit and loss homogeneity, the two time contracting costs can be deducted. In the case of the seller's replacement transaction not only gaining added value but also gaining extra profit, the value increase originates from the market market in the case of the value increase and the additional profit. Therefore, the delay damage should be deducted first. The benefit of the lease of a lease is analogous to a contract of sale. Only in the compensation of the trust interest, the buyer shall return the benefit of reselling. Unless it gives the right to the claim of damages to third persons, and this person can return to the original. Although the principal and interests of the inheritance should be treated in a differentiated manner, this article is opposed to its deduction. The claim for support obtained by orphans shall not be offset. The right of request for remarriage obtained by the remarriage of the relic can be deducted, but the right of request can be restarted when the remarried marriage is broken, and the right to relinquish the claim of new support may be constituted and negligent. The three person's donation should also be decided in accordance with its purpose. The problem domain of the insurance payment needs to be clarified. In the property insurance, the victim should set up a standard damage and transfer the claim to the insurer in the scope of the compensation and exercise the subrogation by the insurer. It is more appropriate than the transfer of legal claims. The principal and the benefits of personal insurance, whether they are made in the form of savings insurance or risk insurance, are not deductible. The profit and loss should be compensated by the obligor to raise evidence, put forward a claim, but not exercise the right of request or form the right. When it is deducted, the independent settlement right and lien right are granted with an exception. When it coexists with the negligence and profit and loss, the interests should first be deducted from the part of the person who is responsible for the claim of compensation for negligence, and the remaining interests can deduct the claim for damages.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923

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