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The Protection of Pure Economic Loss in Torts

Author: MaoXiaoFen
Tutor: ZhangXueJun
School: Zhejiang Technology and Business University
Course: Civil and Commercial Law
Keywords: pure economic loss responsibility of compensation torts
CLC: D923
Type: Master's thesis
Year: 2010
Downloads: 90
Quote: 1
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Abstract

Pure economic loss is that the plaintiff has not suffered loss about his/her visible body or property, but purely a directly and weighable economic. It is direct, invisible and uncertainly. In European comparison test domain, scholars’works about pure economic loss have already huge collection. But in china, the theory discussion and the practice exploration has just started. There has not been clear about the use of the word "pure economic loss". The Chinese new promulgation right infringement responsibility law second stipulation has regulated that:"the violation civil rights and interest, must defer to this law to undertake the right infringement responsibility. In this law, the civil rights and interests are including the life power, the healthy power, the right to name, the right of reputation, the right of fame, the right of portrait, the right of privacy, the right to freedom of choice in marriage, the right of guardianship, the property rights, uses people, the property rights and interests and so on profit real right, security interest, copyright, patent, copyright protection, discovery power, stockholder’s rights, right of inheritance." In this provision, there has no idea about pure economic. The author of this thesis thinks that in the process of the new law’s implementation and the perfect, talking about this topic has the theory and the practice significance. Based on the above reason, the author writes this article.This article altogether divides into five chapters. The first chapter elaborated the pure economic loss etymology, concept, nature, characteristic, pure economic loss and direct loss, indirect loss and so on related concept difference as well as pure economic loss typological analysis. Looked on the nature, the pure economic loss belongs to one kind of the benefit. As to the type, the author approved that divides into the reflecting loss, the transferred lose, the pure economic loss because of the close of the public market as well as the pure economic loss for wrong information, suggestion and professional service.The second chapter elaborated the legislation, the theory and the practice to the pure economic loss protection in two legal systems. In the French code civil has highly the concise quality regarding the harm definition. In the legislation to pure economic loss damage compensate there has no excessively limits. In the judicial practice, judge mainly according to the harm’s substantives, definite and the harm and abuse of authority’s causal relation decide whether to give the compensation to the pure economic loss. The German code civil has enumerated the absolute right detailed list in 823rd, the pure economic loss is removed in outside this provision extent of protection. About the pure economic loss nature’s harm, the German legislators mainly come through the expansion law of contract’s content to protect. Britain is a case-law country, judge has the very big freedom in the processing case’s process to decide after deliberation the power, in the case trying process, judges mainly decides the pure economic loss nature through each kind of policy consideration factor the harm compensation or not. The US legislated and the theorists has not given the pure economic loss question by excessively many attention, in the legislation had only stipulated in the product liability domain the pure economic loss responsibility elimination rule, from this, the victim could not mention suing of the error right infringement on own pure economic loss.The third chapter mainly elaborated each kind of consideration factor about the pure economic loss may compensate or not. The scholar who opposite to give the right infringement damage compensate to the pure economic loss mainly holds the following viewpoint:First, compensates to the pure economic loss can cause the numerous lawsuit floods to well up equally likely to the court, wastes the court the judicial resources; Next, requests the party causing an injury to compensate to the pure economic loss can give it to create the overweight burden, dispels it to be engaged in the production activity the enthusiasm, thus does not favor social the development; Third, along with the liability insurance system’s development, the people who suffer the loss has the feasibility to take insurance; Finally, gives the right of infringement damage compensate to the pure economic loss not to meet, when expands may compensate the harm the scope, and so on. But, also had the scholar to make the corresponding rebuttal in view of the above viewpoint. The author believed that the pure economic loss’s extension is rich, it is very difficult to give explicit limits whether the loss is belonged to the compensation harm. Therefore, the judge should consider the details of the tort and to decide the duty.The fourth chapter firstly introduced Chinese general provisions of the civil law, the right infringement responsibility law, the product quality law, the person damage compensate judicial interpretation and so on related laws and regulations about the pure economic loss nature’s harm’s damage compensate stipulation, these laws and regulations are clear about the protection to be possible the compensation harm including to nurture the person living expenses, the death indemnity, the traffic allowance, the hotel expense and nursing spend and so on. The author believed that these loss’s request power person oneself has not suffered in the person and the property harm, therefore their loss belongs to the pure economic loss, our country legislates to these loss compensation to stipulate that is reasonable and progressive. This chapter secondly chose two cases in this area to carry on the case analysis with the pure economic loss question, involved the pure economic loss nature harm to the case to be possible to compensate or not has expressed author’s some opinions. This chapter thirdly outlines introduced theorists some scholars regarding the pure economic loss question theory viewpoint.Last chapter is this article’s key point. In this chapter, the author firstly proposed to our country present right infringement responsibility law existence’s place of some endless consummation own view. For example, firstly, the present right infringement responsibility law stipulation to the third person the creditor who, debtor’s loss violates the creditor’s rights to create has not given the right infringement damage compensate; Next, in the present right infringement responsibility law had not stipulated that "is nurtured the person living expenses" this item. The author believed that our country may profit from the overseas advanced legislative pattern, causes the pure economic loss to intentionally and the gross negligence violation creditor’s rights to infringe upon the right the law protection, simultaneously, should, in clears off is nurtured between the person living expenses and in the death indemnity relations foundation, performs the careful stipulation to both. Next, the pure economic loss’s protection will simultaneously involve to the law of contract and the right infringement responsibility method setting range overlapping question, the author believed that should delimit a boundary to both setting range, will enable two laws to protect the civil subject compatibly the benefit. Finally, the author proposed will be pure an economic loss word to introduce our country to infringe upon the right the responsibility method approximate tentative plan, and put forward some proposals to the pure economic loss’s typological protection.

The Protection of Pure Economic Loss in Torts

Abstract

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