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Study on Break-Even Rule of Profit and Loss

Author: MiaoFeng
Tutor: ZhangJiaYong
School: Southwestern University of Finance and Economics
Course: Civil and Commercial Law
Keywords: Profit and loss balance Damages Interest Considerable causality
CLC: D913
Type: Master's thesis
Year: 2010
Downloads: 55
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Abstract

The profit and loss offset rules is an important compensation rules for the field of damages, it can best embody the damages compensation function. With the deepening and development of China's market economy, people in the civil exchanges encountered a growing number of legal disputes, both infringement, there are aspects of breach of contract. Which necessarily involves the problem of damages. On the issues of damages is concerned, there are still a lot of victims in damage also based on the same damage causes by the interests not solve the problem, then a simple way of damages. Profit or offset rule is generated in order to solve the above problems. The article will conduct a comprehensive study on the profit and loss offset rules with case and this rule is an attempt to analyze the actual situation and the problems faced in the practical application of justice and made some of their own views. Specifically, this article will be in accordance with the theory after the first practice last legislative research ideas on the profit and loss offset rules for system analysis. The reason for this arrangement is because the theoretical part is the most important and most able to reflect the overall status of the rule and the core idea. Important doctrine or the core point of view of the theoretical part of the help from the grasp of the overall profit and loss offset rules also clarify the rules of the system context, is therefore essential. At the same time, due to the profit and loss offset rules dispute is mainly reflected in the theoretical part, can clear the next in our legislative mode should be selected so through a comparative analysis of the theoretical part of all kinds of theories. Later discussed in the theoretical part of the profit and loss offset rules would be followed by the application of the rule in judicial practice. This paper argues that a damages rule mature or not the key is whether it can play a positive role in the realistic case hearing. Therefore, in order to prove the importance and uniqueness of the profit and loss offset rules, it is necessary to summarize and evaluate the application of its judicial practice. Finally, after the doctrine and judicial practice fully explored in the profit and loss offset rules, the paper will be based on the rule possible future legislation relevant recommendations, including the theoretical aspects, but also contains the idea of ??the practical aspects of justice. In this process, this article will also have the existing domestic and foreign profit and loss offset rules legislative situation analysis, in order to put forward legislative proposals more in line with actual requirements and the overall trend of the development of the rule. In addition to the introduction and conclusion, is divided into four chapters, the contents of each chapter can be summarized as follows: the first chapter, the theoretical basis of the profit and loss offset rules. The theoretical basis of the profit and loss offset rules constitute the guiding principles and values ??of the basis of the whole system of rules, is a manifestation of the general idea of ??the rule, and therefore are an important part of the theory. At the same time, the status and role of the theoretical basis for the elaborate rules of profit and loss balance is also essential. For these reasons, in this chapter first to the profit and loss offset rules two theories based on the interests of the said and prohibited Suntory said a brief overview of both their respective core ideas and analysis, will also be its origins accompanying notes. Then, this article will focus on the interests and prohibited Suntory said comparison and analysis above. Are two theories there is a great difference between profit and loss offset rules guiding ideology, can only choose one of them as a theoretical basis, does not exist at the same time the possibility. With this in mind the importance of future legislation, the paper argues that these two doctrines comparison helps us to make the right choice. With this in mind, this will be the first of the key point of the two doctrines comparative analysis, to discuss these problems with case confirms went on from the problems exposed. Finally, a comprehensive comparison of the two doctrines, will present ideas: the future of China's legislation in the profit and loss balance should be used as the theoretical basis for completely exclude the the obvious defects interests said applicable prohibition Suntory said. The second chapter, the analysis of the constituent elements of the profit and loss offset rules. Constituent elements is a prerequisite and fundamental criterion to determine whether the case can be applied to the profit and loss offset rules to deal with the specific level of the theoretical part of belonging to the rule; first chapter analyzes the theory is based on the overall or macro level, the two complement each other to form a theoretical system of profit and loss offset rules. Therefore, we think that the theoretical basis for macro-guiding principles only as the profit and loss offset rules, can not be directly used for the trial of the case; specific basis to determine whether the rule can settle a lawsuit as a judge can only be to constituent elements compliance requirements as the sole criterion. Because of the constituent elements of the importance of the article will its three major components were carried out a detailed analysis, as follows: first, \This paper argues that: This element is the basis to determine the profit or loss offset rules applicable. The range damage compensation for the right or not directly related to whether the case belongs in damages; Only there is no damage only profit or loss to offset the damages rules applicable conditions. Therefore, this article will be listed in the analysis of this element in three separate cases, explicitly excluded from the application of the rules of the profit and loss balance. Two controversial issues at the same time, this article will reference this element may appear together with analysis: a damage calculation should be based on the subjective interests of the right to compensation or objective value prevail; another moral damage indirect property interests should be applicable to deal with the problem of the profit and loss offset rules. By analyzing the former paper argues that an objective value should prevail; latter paper argues should acknowledge that damage the profitability of the existence of specific calculation method, but further research is needed. Second, by \This paper will explore three judicial cases to prove the elements of the \Through the analysis, the paper argues that this requirement is the key to the case should be to deal with in the profit and loss offset rules, the conditions is also exclude other damages rules apply. Because only the profit and loss offset rules processing cases, compensation for rights holders is well received damage to the interests. Third, has a causal relationship between damage to the facts and suffered interests \This article will focus on the interests derived from the elements deduction standards, that is how it should deal specifically with cases identified and deducting the interests of a reference standard. This standard profit and loss homologous quite causality and regulations tenor three theories. This article is, or will be combined with the analysis of the case to prove that the key point of the three doctrines and compare the pros and cons of the last to make a point on this basis: quite causality that mainly combined with the provisions of the regulations intentions to do for The standard benefits less abandon obvious defects profit and loss homology said. The third chapter, the scope of the rules of the profit and loss balance and exclusions. This chapter discusses the judicial practice of the profit and loss offset rules. This paper argues that, because of the lack of specific legal guidance documents applicable to the profit and loss offset rules, the rules of judicial practice with the adjudication of cases, it is a bit confusing not formed typed. In order to solve the practical problems in this chapter will be basically through case analysis to a clear division of profit and loss offset rules should be applicable to the case in which should not apply, in which case, they can become the judiciary applies the rules to deal with cases reference. Meanwhile, this chapter will also insurance compensation should be applicable income offset rules deal with \Scholarly evaluation and analysis, the paper argues that the insurance compensation, whether profit or loss offset a distinction should be made between the case treated: first, life insurance premiums should clearly not be offset; Second, basic insurance money in the profit and loss can not be offset by other personal and health insurance, medical insurance premiums can meet. If you can not differentiate between the two should be unified treated in accordance with the basic insurance premium; Third, property insurance premiums determined should profit and loss balance. Chapter IV, the profit and loss offset rules at home and abroad the status of legislation and legislative proposals. Discuss the theory and judicial practice part of the profit and loss offset rules in this chapter for the rules in the legislation of the future of our country may make relevant recommendations, hoping to become a reference. First, the overall analysis of this article will present, China's legislative status quo on the profit and loss offset rules. Thinking on the legislation itself; evaluation of the proposed draft legislation related to domestic scholars; analysis of the draft Tort Liability Act \Secondly, this article will introduce the legislation of Germany, France, the United States and the International Institute for the Unification Institute of Justice about the profit and loss offset rules more mature and meaningful analysis of China's Legislation. Finally, in the summary of the previous three chapters conclusions and based on the analysis of related legislation, this article will present five recommendations in future legislation on the profit and loss offset rules, both theoretical content, but also include the idea of ??judicial practice. The profit and loss offset rules as an important rule of damages, in our theory and practice for a long time not given due attention, resulting in the theoretical research and judicial application is not deep enough and fully. In this context, we have chosen the profit and loss offset rules as a research topic has a certain practical significance. In this paper, using comparative studies and case studies in the form of a combination of discussion and analysis of profit and loss balance rules. Comparative study mainly on the theoretical basis for the two doctrines, comparative analysis of the above three standard deduction of interests; case analysis has always been throughout the paper, not only confirmed case of theoretical issues, judicial practice The analysis of the cases, thus enhancing the practical relevance of the research and theory convincing.

Study on Break-Even Rule of Profit and Loss

Abstract

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