Expected interest loss compensation
If one party fails to perform the contract, or improperly performs the contract, or intentionally or negligently infringes on the property or property rights of others, it will not only cause direct property losses to the other party, but also often cause losses to the expected interests of the other party. Although the Civil Code of People's Republic of China (PRC) clearly stipulates the compensation for loss of expected interest, there are different understandings in the theoretical circle and different practices in judicial practice. Therefore, this paper discusses this issue.
In essence, civil tort is a violation of civil obligations, which can also be said to be civil damage. Objectively, there are three harmful consequences: first, it causes damage to other people's property or property rights; The second is to cause personal injury to others; The third is to damage the personality (that is, spirit) of others. Among them, the damage to others' property or property interests is manifested as the direct loss of the victim's property and the loss of expected interests. Sometimes an illegal act will cause two kinds of property damage consequences at the same time, and sometimes it may be only one of them. The so-called direct loss refers to the damage, reduction, loss or increase in expenditure of other people's existing property caused by civil violations; The so-called expected loss of interest means that one party violates the contract or intentionally or negligently damages the property or property rights of others, so that the property interests that the obligee (that is, the victim) could have realized or obtained under normal circumstances cannot be realized or reduced due to the damage.
As the result of property damage caused by civil tort, the loss of expected interest has the following characteristics: L. It is the loss of the victim's future interest. This kind of interest was not actually owned by the obligee when the illegal act occurred, and it belongs to a kind of interest that the obligee (victim) expected or began to implement and obtained. 2. Expected interest loss is a kind of actual loss. 3. Expected interest loss is a kind of property loss. Expected benefit is the value-added benefit of property that the obligee hopes to obtain on the basis of the original property. The expected loss of interest is the result of illegal acts infringing on the property or property relationship in the value-added state, and its loss can be measured and calculated by money in theory and practice. Therefore, its loss is essentially a material loss that has not been materialized, that is, property loss. From the practical point of view, there are various kinds of civil torts that may cause the loss of others' expected interests, including: 1. Breach of contract; 2. Acts that damage other people's property or property interests; 3. acts that harm others' personal lives: 4. Acts that damage the personality of others.
In legislation, the Civil Code of People's Republic of China (PRC) clearly stipulates the compensation for the loss of the victim's expected interests caused by breach of contract, but there is no clear provision for the compensation for the loss of the victim's expected interests caused by the act of damaging the property rights of others. This paper will discuss the loss of expected benefits from two aspects: breach of contract and damage to property. The loss of other people's interests caused by breach of contract damages other people's property or property rights is objectively manifested in two different forms: first, the illegal act carries out or causes damage to the property of the right holder in a value-added state, thus making the right holder lose the premise and foundation for realizing property appreciation. On this occasion, on the one hand, the illegal act caused the direct loss of the creditor's property (that is, the damage, reduction or loss of the property itself), on the other hand, it also caused the loss of the creditor's expected interests. Second, although the illegal act does not objectively damage the property ontology of the obligee in the process of value-added, it destroys the property relationship established by the obligee according to law for obtaining certain property interests, thus destroying the conditions for the obligee to obtain property value-added under normal circumstances, and leading to the loss of the obligee's future interests, that is, expected interests. No matter what form it takes, it objectively shows such characteristics and laws, that is, the expected loss of interest as a consequence of property damage is caused by civil illegal acts, and its loss depends on the degree of illegal acts.
Judging from the current judicial practice, under normal circumstances, people can pay attention to the protection of direct losses on the property of the obligee (that is, the victim), but the protection of the loss of expected interests is often insufficient. The subjective reason for this deviation is that some people think that the loss of expected interest is not actual loss, which can not be judged accurately objectively. Some people even think that the compensation of expected interest is too harsh on the offender, so the victim may get improper benefits. Therefore, in order to solve the problem of compensation for the loss of expected interest, it is necessary to clarify the nature of expected interest and its loss in theory. Correctly understand whether the expected interest belongs to the actual interest of the obligee and whether its loss belongs to the actual property loss of the obligee.
The expected benefit mentioned in the civil law refers to the property appreciation benefit that the obligee (that is, the property owner or manager) expects to realize and obtain through certain behaviors (mainly production and operation behaviors) on the premise and basis of the property he owns or manages. As mentioned above, this kind of property interest has the characteristics of futurity, extensibility and availability. The so-called futurity means that this kind of property interest is not owned by the obligee now, but will be obtained and realized in the future process. The so-called expansibility means that it is a property value-added benefit based on certain existing property. On the one hand, we need to rely on certain existing property, on the other hand, we need to expand and increase existing property. The so-called availability means that this property interest has already met the conditions for realization. Under normal circumstances, it can be completely transformed into real interests. Because of this, the expected interest is a real property interest for the obligee, not a hypothetical or illusory one. Although the expected interest loss is different from the property loss, there is no difference in the impact on the actual economic interests of the obligee. This kind of influence is as follows: (65,438+0) The loss caused the property of the obligee (i.e. the victim) to fail to gain the expected appreciation within a certain period; (2) This kind of loss makes the victim's production and operation plan fall through in a certain range or period. (3) Its loss makes the victim bear an undue burden. Therefore, it is unfounded to deny that the expected loss of interest is the actual loss, and it is unfair to the victim.
Whether to compensate for the expected loss of interest involves the degree and scope of legal protection of property relations. Under the condition of market economy, the property interests of producers and operators are not only the possession of certain property, but also the production and exchange of goods based on property ownership or management right, thus creating and realizing the value-added interests of property. The former shows static property rights, while the latter shows dynamic property rights. Laws reflecting the relationship of market economy should not only protect the existing property ownership relationship, but also protect the relationship between commodity production and commodity exchange based on property ownership or management right, and protect the rights and obligations formed between the parties in the process of commodity production and commodity exchange. The normal development of any commodity economy can not be separated from these two guarantees. Similarly, any law that reflects the relationship between market economy must unify these two protections. At present, China is vigorously developing the market economy. From the legal point of view, we should constantly improve various necessary legal systems, so as to create a good legal environment and legal order for the socialist market economy. Anticipated interests, as property rights that producers and operators expect to realize in commodity production and commodity exchange, should be protected by law, and they should bear corresponding legal responsibilities for the damage to anticipated interests.
Anticipated interest damages are not only completely established in theory, but also necessary in practice. From a macro point of view, the compensation for expected interest damage is conducive to maintaining socialist property relations and market economic order. From the microscopic point of view, it is necessary to compensate the expected loss of interest by compensating the economic losses of the victims and eliminating the adverse property consequences caused by illegal acts. At the same time, the establishment of the system of anticipatory interest damages is conducive to improving and perfecting the civil liability mechanism, enhancing the legal concept of the parties and their sense of responsibility to society and others, and eliminating or reducing the occurrence of illegal acts. Because, as a kind of civil liability, the compensation for anticipatory interest damage has the duality of compensation and punishment: for the victim, it can fill the property losses caused by illegal acts and restore the infringed civil rights; For the injurer, it is a punishment for his illegal behavior and a liquidation of his harmful consequences. The universal significance of this liability system in law lies in that it can effectively restrain and prevent damage before it happens, and can make the victim's property loss get full and reasonable relief after the damage happens.
In our country, it is not only necessary, but also completely feasible to require the civil infringer to compensate both the direct loss of the victim and the expected loss of interest. Because, first, as far as enterprises are concerned, after the economic system reform, according to the law, enterprises are independent economic entities and legal persons who independently exercise their rights and assume obligations with the property they own or manage, which provides a reliable material basis and legal guarantee for enterprises to take responsibility for the damage consequences caused by their actions. Second, compensation for the expected loss of interest does not increase the legal responsibility of the actor. Because compensation itself is to make up for the actual loss of the victim, the actor's commitment to this loss is only the liquidation of the consequences of his behavior. If the number is increased, it only shows that the actor has a more thorough liquidation of the consequences of his actions, which does not mean that it is really fair in law. On the contrary, if the injurer fails to liquidate the consequences of his actions or the liquidation is not thorough, it is not only unfair in law, but also unreasonable in reason. Thirdly, it emphasizes the compensation for the expected loss of interests and demands the compensation for the actual loss of property interests of the victims. The existence and identification of such losses have objective basis and standards, and are not fabricated or imagined by the parties concerned. Therefore, the compensation for such losses will not cause the victim to get unjust enrichment. At the same time, we need not worry or fear that some parties will make unreasonable demands when making compensation.
From a global perspective, there are many precedents in legislation to compensate for the loss of expected interests. For example, Article 1 1 Article 49 stipulates: "Compensation for damages payable to creditors" Article 252 of .......................................................................................................................................'s German Civil Code stipulates: "The losses that should be compensated also include the lost interests. According to the usual course of things, or according to the special circumstances such as the equipment that has been carried out, the expected income can be regarded as the lost income. "The new Civil Code, which came into effect in June 1 999+1October1,embodies the latest achievements of China's contract legislation. On the basis of fully respecting China's actual national conditions, the new Civil Code draws extensively on the theories and legislation of other countries. Article 1 13 of the new civil code stipulates: "If one party fails to perform its contractual obligations or fails to perform its contractual obligations as agreed, causing losses to the other party, the amount of damages shall be equivalent to the losses caused by the breach of contract, including the benefits that can be obtained after the performance of the contract, but shall not exceed the losses that the breaching party foresaw or should have foreseen when concluding the contract. "Such regulations are in line with China's reality and international standards. From the perspective of judicial trial, the difficulty in solving the problem of compensation for expected loss of interest lies not in the cognitive problem of whether to compensate, but in the practical problem of how to compensate, that is, the scope and method of compensation.
As a civil liability, compensation for losses is limited to the actual losses caused by the illegal actor to the victim's property and property interests. Compensation for expected interest loss is no exception. Judging from the judicial practice, the expected loss of interest caused by the actor to others' property mainly includes the following types:
(1) Loss of profit. Profit is the property income obtained by operators through certain production and business activities, which is generally calculated and measured in currency. In China, profits are generated in the fields of production and circulation. Enterprises or other operators engaged in production and business activities are the conditions for earning profits. No matter breach of contract or infringement, the production and business activities of the operators will be interrupted to a certain extent or within a certain range, or the basis (that is, property) and conditions for engaging in such activities will be lost, resulting in loss of profits. Loss of profit is the most typical, common and largest form of expected interest loss. The nature of profit determines that the victims of profit loss can only be enterprise legal persons, other economic organizations, individual operators and contractors engaged in certain production and business activities.
As for the loss of profits, I think it is inappropriate to emphasize full compensation in general. Because profit, as the result of production and operation, needs a process of combining various production factors. In this process, not only a certain amount of material information (that is, a certain amount of property), but also a certain amount of manpower and material resources are needed. Although objectively, regardless of the stage of production and operation, the damage will cause or lead to the failure to realize or fully realize the profits, but the damage caused by illegal acts is often only one or more of the various elements needed for the production of profits, not all, and in the case that the production and operation are interrupted or hindered to a certain extent due to illegal acts, the operators also reduce the investment of manpower and material resources accordingly. In this case, it is obviously unreasonable to compensate the victim for all the loss of profits. For example, in a production equipment purchase and sale contract, due to the supplier's reasons, the buyer delayed production for half a month, during which the buyer lost 20,000 yuan in profits. We know that under normal circumstances, in order to obtain the profit of 20,000 yuan, the buyer needs to invest some manpower and material resources in addition to the production equipment provided by the supplier. Now the buyer can't produce normally because of the supplier's breach of contract, and at the same time, he has not invested his due manpower and material resources. It is obviously unfair for the supplier to compensate the buyer for the loss of profits of 20,000 yuan. Considering that the buyer did not make the necessary efforts in manpower and material resources during the half-month delay, it is more reasonable for the supplier to compensate according to a certain proportion of the loss of profits, which is easy for the parties to accept. Based on this analysis, I think it is generally inappropriate to emphasize full compensation for loss of profits, but should be treated differently according to the degree of influence of breach of contract on loss of profits: (1) When an illegal act occurs at the end of the production and operation process, the loss of profits caused by it should be fully compensated; (two) when illegal acts occur in the process of production and operation, the loss of profits caused shall be compensated according to a certain proportion; (3) If a specific production and business operation activity is interrupted or delayed due to an illegal act, appropriate compensation shall be given according to a certain proportion of the profit loss during the interruption and delay.
(2) Fruit loss. Fruits are the original benefits. When an illegal act causes damage to the property that can produce fruits under normal circumstances, it will also lead to the loss of fruits. In civil law, fruits include natural fruits and legal fruits. Because natural fruits are often cyclical or even incremental, such as female animals giving birth and hens laying eggs, it is necessary and reasonable to limit the scope of this loss. Generally speaking, the loss of natural fruits should be limited to the loss directly related to the property itself or in the same production cycle, that is, only the fruits brought by the property itself (the original) when the illegal damage occurs, such as the young animals conceived when the mother animal dies and the young fruits produced when the fruit trees are damaged. As for the fruit that the victim may get in the later cycle, the scope is incalculable because there are not enough acquisition conditions when the damage occurs, and it is generally not suitable for compensation. Legal fruits, such as interest, rent, etc. , with the passage of time on the basis of the original object at a certain rate or a certain amount of proliferation. This kind of loss range (loss amount) is easy to determine and calculate, generally speaking, it is less controversial.
(3) other income losses. Mainly refers to the infringement of industrial property rights, including patent rights and trademark rights, resulting in the expected loss of interests. Its characteristic is that the infringer has not caused direct damage to the property of the obligee, but illegally manufactures and sells other people's patented products or uses other people's registered trademarks without the permission of the obligee, so that the obligee can not obtain benefits according to the patent right and trademark right.
(four) the relevant expenses to eliminate the consequences of potential damage. In the compensation for the expected loss of interest, it should also include the relevant expenses paid by the victim to eliminate the harmful consequences that may be caused by future illegal acts. Taking environmental pollution as an example, farmland pollution will not only reduce the production and death of existing crops, but also reduce and lose farmland fertility. In order to restore the original soil quality and fertility of polluted farmland, it is necessary to improve and add fertilizer in a certain period of time. In the process of restoring soil fertility, the victims not only need to reduce their income, but also need to increase a lot of manpower and material resources. The human and material resources that the victim must spend to eliminate the potential harmful consequences of pollution should also be regarded as the expected loss of interests, and the injured party should be compensated. [Page]
In the compensation of expected benefits, we should not only solve the problem of compensation scope, but also determine the compensation amount of expected benefits loss. In judicial practice, the following methods can be generally used to determine the amount of compensation for expected interest losses:
(1) comparison method. Also known as the comparison method, it means that the people's court compares the income obtained by other similar units that are the same or similar to the victim in the same period by analogy or analogy, and should actually compensate the victim for the expected loss of interests. Using this method, we must first determine the reference object, that is, the comparison object. When determining the reference object, it should be noted that the conditions between the reference object and the victim are basically the same. The more the same or similar conditions between the two, the more reasonable the comparison and the higher the accuracy. Secondly, we should determine the income of the reference object during the victim's injury. If the victim himself is the object of comparison, the average income (such as profit rate) of the victim for a long time before the loss occurs should be taken as the standard.
(2) Estimation method. Also known as the estimated compensation law, it means that when it is difficult to accurately determine the actual expected loss of interests of the victim due to the lack of comparable objects, the people's court will order the actor to pay a roughly equivalent amount of compensation according to the specific circumstances of the case. This method is suitable for determining the expected interest loss that cannot or should not be compared and analogized. For example, the loss of natural fruits, the determination of expected loss of benefits, such as the increased expenditure in the future to eliminate potential harmful consequences.
(3) agreed methods. It means that the people's court determines the liability of the actor according to the scope of damages or the calculation method of damages agreed or determined by the parties through consultation. This method is widely applicable to the compensation of expected interest loss caused by breach of contract. The parties agree or negotiate to determine the scope of compensation or the calculation method of loss compensation, which can be agreed in advance in the contract or determined through consultation after a dispute arises. If the parties have an agreement, the people's court shall determine the amount of compensation for the expected loss of interest in accordance with their agreement.
In judicial practice, the compensation for the loss of expected interest should also be linked to the burden of proof, so that the victim can prove the loss of expected interest. If the victim lacks appropriate evidence and it is difficult for the people's court to determine his expected loss of interest, it will generally not be supported.
Compared with the compensation for direct losses, the compensation for damages of expected interests is much more complicated and difficult, and it is also the easiest to cause disputes between the parties. Therefore, in judicial practice, the people's court should pay special attention to the compensation of expected interests and pay attention to the following principles:
(1) Seeking truth from facts and comprehensively protecting the legitimate rights and interests of the parties. The so-called seeking truth from facts is to determine the existence and size of the expected loss of interest, which should be strictly based on facts. The facts mentioned here mainly refer to the fact that the victim has suffered the expected loss of interests. To judge whether the expected loss of interest exists, we should generally grasp two conditions: (1) whether the future interests of the victim have the basis and conditions for realization. Expected income should be the future income that can be realized under normal conditions with necessary conditions. If there is only one assumption or possibility of future income, but there is no sufficient realization condition, it is not appropriate to talk about the loss of expected income; (2) Whether this loss of future interests objectively adversely affects the economic life of the victim, including production and business activities, we should not only pay attention to protecting the legitimate rights and interests of the victim, so that the property losses actually suffered by him due to illegal acts can be fully compensated, but also pay attention to protecting the legitimate rights and interests of the actor, so that his responsibilities can basically adapt to the illegal acts. If the consequences of the damage are entirely caused by the injurious act, then the injurer shall bear all the liability for compensation; If the victim is also responsible for the consequences of the damage, then the injurer should only bear the part of the loss that is suitable for his own fault, and should not pay all the compensation; If the victim fails to take effective measures in time, resulting in avoidable damage results, then the injurer will generally not pay compensation.
(2) Restriction according to law. In principle, the loss of other people's expected interests caused by illegal acts should be fully compensated, but this does not mean that the compensation for the loss of expected interests can be unlimited, nor does it mean that any loss of expected interests can be compensated indiscriminately. On the contrary, in judicial practice, the compensation for the loss of expected interests should be limited according to law, so as to be fair, reasonable and appropriate. (l) If the scope of compensation prescribed by relevant laws and regulations does not include the expected loss of interest, the expected loss of interest shall not be compensated according to law. For example, the Civil Law of People's Republic of China (PRC) stipulates: "The amount of compensation for damage or loss of goods, if agreed by the parties, shall be in accordance with its agreement; If there is no agreement or the agreement is unclear, and it cannot be determined according to the provisions of this Law, it shall be calculated according to the market price of the goods at the time of delivery or delivery. Where there are other provisions in laws and administrative regulations on calculation methods and compensation limits, those provisions shall prevail. (2) If the relevant laws and regulations clearly stipulate the compensation method and the maximum amount, compensation shall be made within the scope stipulated by the laws and regulations, or in accordance with the prescribed methods and limits. For example, the Civil Law of People's Republic of China (PRC) stipulates: "The liability of one party for breach of contract shall be equivalent to the losses suffered by the other party, but shall not exceed the losses that the breaching party should have foreseen when concluding the contract. "For another example, Article 24 of the Measures for Bank Settlement stipulates:" If a bank delays settlement due to work mistakes, which affects the use of funds by customers and other banks, it shall pay compensation according to the deposit (loan) interest rate. If the settlement funds are delayed, misappropriated or withheld due to violation of the provisions of the settlement system, which affects the use of funds by customers and other banks, compensation shall be made at the rate of three ten thousandths of the daily settlement amount. "In this case, the expected loss of interest that has not been compensated after compensation in accordance with the compensation method or scope stipulated by laws and regulations shall not be compensated according to law.