Abstractloss of use: A compensable property damage
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    Abstract:

    The compensability of abstract use losses in the field of torts in China is still controversial. The reason for this is the balance theory of damages. The balance theory was proposed by Mommsen in his article Theory of Interest in 1855, stating that damage is the difference between the amount of property owned by the victim after the occurrence of the damage accident and the amount of property that should have been owned if the damage accident has not occurred. Since the victim has not paid for the substitute, naturally there is no property difference, so no damage has occurred. The theoretical source of Mommsen's balance theory is the concept of interest in Roman law. The denial of the compensability of abstract loss of use comes from the misunderstanding of the state of balance in Roman law. The so-called balance focuses on the overall state of material interests, rather than a simple calculation of the amount of property. Therefore, the real connotation of the balance theory should be the change of interests before and after the occurrence of the infringement event. The loss of interest in abstract use should be a loss of property interest for three reasons. First, the scope of abstract use loss can be determined by subjective calculation methods, and the abstract use value of objects can obtain property value attributes relying on the commercial value theory, and its certainty requirements are not absolute, only the relative certainty standard should be met. Second, the use loss of profit-making objects and the abstract use loss of self-use objects should be equally evaluated. The infringement behavior of the perpetrator hinders the realization of the right holder's use interest on the property, resulting in the failure of the victim's reasonable expectations. The significance of property not only lies in its body, but also in using the property to achieve the purpose of life. Third, the concept of loss of property interests is more extensive, avoiding the blind expansion of the scope of damage compensation, and limiting abstract use loss is more in line with Chinese Civil Code's concept of rights protection. German law has long recognized the compensability of abstract loss of use, constructed a complete set of normative systems through judicial practice, and filled the deficiency of the traditional balance theory in use compensation with the concept of normative damage. Normative damage is a concept opposite to natural damage. It is proposed that the definition of damage is not limited to legal provisions, and whether it is compensable is determined according to the importance of the damaged rights and interests in the evaluation of legal norms. According to the return of profit system established in the Civil Code, the infringer realizes the abstract use interest on behalf of the victim, and this interest should belong to the victim according to legal order, so this interest should be returned to the victim. Therefore, the compensability of abstract loss of use conforms to the evaluation of legal norms. Chinese Civil Code is also influenced by German law. It adopts the general provisions on damages and the structure of specific items for damages. Therefore, the concept of normative damage in German law has a reference significance for China. In the process of integration with Chinese damage compensation system, it is necessary to pay attention to the limiting factors of normative evaluation, that is, the requirements of the damaged object being necessary to maintain personal life and sensibility must be met. The purpose of this article is to introduce the construction of relevant systems in German law, combined with the damage compensation system with Chinese characteristics, to provide reference for domestic practice and theory.

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李岩,唐浩淳.抽象使用损失:一种应当赔偿的财产损害[J].重庆大学学报社会科学版,2024,(1):232~247

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  • Online: March 15,2024
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