侵权法中机会损失问题研究

发布时间：2018-07-16 14:38

【摘要】：机会损失理论是指如果被告的侵权行为破坏或减少了原告获得更有利结果的机会,原告可以就损失的机会请求赔偿的学说。该理论在域外法司法实践中多有运用,但在适用范围上存在差异。目前,我国法律并不承认机会损失属于可赔偿性损害,导致司法实践中法官难以认定机会的损害赔偿。理论界对机会损失的讨论较少,对该理论的引入也存在争议。为了正确指导司法实践,更好地保护当事人的权益,有必要对现行的规定进行完善。本文立足于侵权损害赔偿的基本原理,结合现行法律规定以及相关学者的理论研究,同时借鉴国外有关机会损失理论的具体案例和研究成果,提出机会损失理论引入我国的必要性和可行性,以期为我国司法实践提供有益的借鉴。本文共分为五个部分：第一部分阐述了机会损失的概念、性质、特征及类型。从概念上看,本文所讨论的机会损失并不限于生存机会损失,还包括获奖机会损失、商业机会损失等。从性质上看,机会本身代表某种利益,具有法律保护价值。机会损失属于期待利益,在医疗侵权领域还表现为人格利益。第二部分是对机会损失理论比较法上的考察。主要阐述了美国法上机会损失理论的产生以及法国法、日本法对机会损失理论的拓展。分析比较不同国家有关机会损失理论适用范围的差异。总结出各个国家及地区所采取的主要做法是认可宽松的因果关系标准以及有限度的承认机会损失作为一种损害。最后分析不同国家和地区司法实践对我国的参考价值。第三部分主要探讨机会损失中的因果关系理论。比较分析了传统因果关系规则在机会损失案件的不足与缺陷,因果关系标准并非一成不变,需要具体问题具体分析。并指出宽松因果关系应广泛适用于解决机会损失案件。第四部分阐述机会损失中的损害赔偿理论。主要围绕机会损害的认定与损害赔偿的计算两方面进行。阐述了损害的特征、分类。主张从广义上理解损害的概念,并认为机会损害具备可赔偿性损害的一般特征。在损害赔偿的计算方式上,主张以比例赔偿为主,法官自由裁量为辅的方法。第五部分阐述我国立法与司法现状及完善建议。我国现行法律规定并未涉及机会损失赔偿。从司法实践看,由于缺乏相关法律规定,受害人的机会损失往往难以得到赔偿。但从国外立法、司法经验与我国国情看,我国承认机会损失赔偿具有必要性和可行性。建议我国引入机会损失理论,以侵权法第2条、第6条作为其请求权基础。在机会损失赔偿计算方面,以最终损害乘以相应的系数,计算赔偿数额。
[Abstract]:The theory of opportunity loss refers to the doctrine that the plaintiff can claim compensation for the opportunity of loss if the defendant's tort destroys or reduces the plaintiff's chances of obtaining more favorable results. The theory is widely used in the judicial practice of extraterritorial law, but there are differences in the scope of application. At present, the law of our country does not recognize the opportunity loss as compensable damage, which makes it difficult for the judge to determine the opportunity damage compensation in judicial practice. The theory of opportunity loss is less discussed, and the introduction of the theory is also controversial. In order to guide judicial practice correctly and better protect the rights and interests of the parties, it is necessary to perfect the existing regulations. This paper is based on the basic principle of tort compensation, combined with the current laws and regulations and the theoretical research of relevant scholars, and at the same time draw lessons from the specific cases and research results of the opportunity loss theory in foreign countries. The necessity and feasibility of introducing opportunity loss theory into our country are put forward in order to provide useful reference for our judicial practice. This paper is divided into five parts: the first part describes the concept, nature, characteristics and types of opportunity loss. Conceptually, the opportunity loss discussed in this paper is not limited to the loss of chance of survival, but also includes loss of chance of winning and loss of opportunity of business. In nature, opportunity itself represents a certain interest and has legal protection value. The opportunity loss belongs to the expectation benefit, also manifests as the personality benefit in the medical tort domain. The second part is a comparative study of opportunity loss theory. This paper mainly expounds the emergence of opportunity loss theory in American law and the expansion of opportunity loss theory by French law and Japanese law. This paper analyzes and compares the differences in the scope of application of the opportunity loss theory in different countries. It is concluded that the main measures adopted by various countries and regions are to recognize the loose causality standard and the limited recognition of opportunity loss as a kind of damage. Finally, it analyzes the reference value of judicial practice in different countries and regions. The third part mainly discusses the causality theory in opportunity loss. This paper compares and analyzes the shortcomings and defects of the traditional causality rules in the case of opportunity loss. The criterion of causation is not fixed and needs to be analyzed concretely. It also points out that the loose causality should be widely applied to solve the case of opportunity loss. The fourth part elaborates the damage compensation theory in the opportunity loss. Mainly around the opportunity damage confirmation and the damage compensation computation two aspects carries on. The characteristics and classification of damage are expounded. The author holds that the concept of damage should be understood in a broad sense, and that opportunity damage has the general characteristics of compensable damage. In the way of calculating damages, we advocate the method of proportional compensation, supplemented by judges' discretion. The fifth part elaborates our country legislation and the judicature present situation and the consummation proposal. China's current laws and regulations do not involve opportunity loss compensation. From the judicial practice, due to the lack of relevant legal provisions, the victim's loss of opportunity is often difficult to obtain compensation. However, from the point of view of foreign legislation, judicial experience and China's national conditions, it is necessary and feasible for our country to admit that compensation for loss of opportunity is necessary and feasible. It is suggested that our country introduce the theory of opportunity loss and take Article 2 and Article 6 of the Tort Law as the basis of its claim. In the calculation of opportunity loss compensation, the amount of compensation is calculated by multiplying the corresponding coefficient with the final damage.
【学位授予单位】：浙江工商大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D913

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