Tort liability on property analysis specification

Property rights, tort liability in the tort Law system has always occupied an important place, and widespread in the general and special tort liability among tort. In view of the scope suffered against the openness of the property, "<Tort Liability Act"> the scope of protection relatively broad, from the infringement of property rights to the property are the interests of the damage covered by the provisions of its 2,15,19,21 strips together to build a property tort compensation system of norms. The first 19 and most critical, direct impact on property rights infringement in the calculation of property loss is the property of the end result of tort liability system. but unfortunately, "<Tort Liability Act"> the provisions of Article 19 is too simple, usually made only general specifications, resulting in the provisions in the legislation of considerable controversy, even in the "<Tort Liability Act"> promulgated and implemented, Law experts and legal practitioners are also more than a criticism of the provision. Meanwhile, with the single Law enacted Civil, China Civil Law has been gradually moving from Research to explain the theory of legislation, on the one hand the use of the legislative process itself should explain the logic of science to explore its meaning and operation of the proper fitness, so there is the introduction of legal provisions Bu Zhiyu too obvious omission, on the other hand , with the interpretation of the Law school to sort out the existing text, to supplement and enrich the existing legal provisions, thereby affecting the new law. [1] for the <<Tort Liability Act "> 19, we should insist on to explain, since the principle of compensation for property rights infringement stArting, in order to clarify the direct losses, indirect losses and controversial theory of pure economic loss, clarity to the principle of full compensation (fill the harm principle) as the highest purpose of the principle of compensation system; to <<Tort Liability Act "> Article 2 base point, defined property rights, the scope and type of tort liability, tort liability property loss of the final calculation of building a theoretical framework and specific applicable rules, provide guidance for the administration of Justice.

First, property rights, the determination of the principles of tort liability: the balance of interests as the center
(A) the principle of full compensation for the loss of indirect compensation for pure economic loss and cognitive
Property rights infringement damages to cover the principle, to the extent the basis of loss of property, to achieve full compensation of property losses, the basic norms of tort compensation. [2] full compensation (fill the damage) includes not only infringes upon the property damage caused by the direct loss, but also the indirect losses that may arise, that is outside the appropriate compensation for damages in addition to positive should be given but the result and not tort acquired property interests. <<Civil Code "> section 117 has an indirect damages required by law, as long as the acquisition of property for violations with the possibility, even if not the reality of the loss of benefits, indirect costs should also be established.

Indirect losses due to the extent of the loss is difficult to accurately determine the confined circumstances of the case and, therefore, finds that indirect losses in terms of academic differences. Accordingly, on the <<Civil Code "> referred to in Article 117 of the" heavy losses by other the "understanding there are different opinions. Some scholars believe that only major losses are only give compensation, general damages are not compensation, not because of increased protection of the interests of victims of the infringer the burden of compensation. [3] This knowledge is based on tort law is not only the right to protect the referee method, but also people's behavior and reasonable delineation of the boundaries of freedom of the law have asked if the infringer weight, it will affect their freedom of action, contrary to the interests of a balanced tone, so of indirect losses should be limited to the predictability of the standard. It is in compensation for the loss of damage to the principles to be followed to fill, I believe that, based on current conditions and "<Tort Liability Act," the legislative environment, for the obvious can be judged and can be foresee possible benefits of impairment, the general indirect losses should be compensated.

In "<Tort Liability Act"> the legislative process, many experts recommend is issued from the foreign enactment of legislation or put forward compensation of pure economic loss recommendations, and preferred its exposure under the principle of full compensation. [4] States the definition of pure economic loss is not uniform, generally refers to physical damage is not dependent on the loss occurred, or is not as right or interest protected against the result in the loss. [5] The author believes that to be a pure economic loss certain limits of compensation are reasonable, the compensation for pure economic loss limited to the conditions and standards by perpetrators and the possible benefits of subjective intent to be comprehensive consideration to determine the predictability. To prevent unlimited expansion of the scope of compensation for pure economic loss should to qualify for compensation, that compensation shall not exceed the scope of infringement offender should be foreseen in the implementation of the scope of the losses, "" The European fundamental principles of tort law "Section 2:102 (4) that is purely economic damages on a limited express. [6] can be seen, both for <<Tort Liability Act "> understanding of the rules of Article 19 or on the specific practice of judicial referee's knowledge, to give full compensation for pure economic loss, the balance of interests should be the bottom line of the Civil areas of the guiding principles .

(B) the principle of full compensation and profit and loss balance, fit the rules of contributory negligence
<<Tort Liability Act, "Article 19 reflects the property's full compensation for damages tort principles, the basic social and economic development momentum, with social Justice. Throughout the world, whether common law or civil law countries countries enshrined as the guiding principle to fill the damage, damage to the victim in order to achieve the purpose of filling. [7] Two Schools of property damages in determining the scope or standard, while the objective loss of property and property interests as a compensation object.

Relative to the principle of full compensation, profit and loss balance rules infringement of property rights seems to be more marginal position, for more subtle, then often reflected in the judicial practice of specific referees are not inconsiderable. Loss offset rules is to determine the scope of tort liability for damages and how the size of commitment to the rule, and in determining the infringer shall bear tort liability, while the amount of damage and deducted for the same reasons in the interests of the difference. [8] gains offset the losses and the German common law rule in the era of Roman law was recognized in the mainland law civil liability system is crucial, very important role, from the national judicial practice, the rule in the country was again in the case doctrine is recognized. taking into account the property, tort liability has a one-way characteristics, gains offset the losses do not all point to the amount of damages can be said that the comprehensive implementation of the principle of compensation and expression. but unfortunately, profit and loss balance rules in "Tort Law"> there is no express provision. Thus, in the case of specific proceedings, the judge should within the framework of the existing law to follow the principle of full compensation, using a variety of interpretation derived properly, with a convincing conclusion, in order to achieve a balance between the interests of the parties.

Contributory negligence rule also applies in violation occurred due to the specific performance of <<Tort Liability Act "> the Application of Article 26. See," <Tort Liability Act "> 19 tort liability on the property specifications are not isolated, and tort liability system in coordination with other specifications, echo each other. In short, the principle of full compensation and gains offset the losses, the fault offset between the internal consistency, supporting each other to form a diverse and flexible system, together infringement of property rights to build a scientific principle of compensation system. we deal with gains offset the losses, such as contributory negligence rule given sufficient attention.

Second, property rights, the scope of tort liability for compensation: to expand and type of
(A) protect the legal interests of property infringement liability extension
<<Civil Code "> 106 liability for infringement of objects were defined. From the provisions of specification point of view, which does not seem to be the object of tort liability is limited to personal rights and property rights. In fact," <Tort Liability Act "> before the introduction of civil law and judicial practice in interpretation when the object of tort law not to protect the "civil rights" is limited, including not only "property rights", "personal rights", but also the right not constitute "personal interests" and "property interests "include them. [9] In other words, in the" <Civil Code "> for the definition of the scope of tort liability, either civil rights or the infringement of civil rights violations outside of the legitimate interests of tort liability can be established. <<Tort Liability Act"> The enactment of tort liability will be expressed as the object of protection of civil rights, and formed different from the <"German Civil Code" and "<French Civil Code>> Code of the legislative system of two paradigms. The object of protection against tort liability for "general + list" of cases show-style legislation, in as much detail as cited <<Tort Liability Act "> property rights and interests protected, it is also fully expressed the extent of property rights infringement liability legislation an open and inclusive features.

<<Tort Liability Act "> Article 2, paragraph 1, of" civil rights "concept instead of <<Civil Code"> object in the Liability Protection "property and personal", obviously in reference <<Civil Code "> 106 article, based on the combination of theory and judicial practice relating to civil law provisions, expands the object of tort law protection. In addition, technical point of view of legislation, "<Tort Liability Act"> is not only greater than our focus on the protection of other civil law broad range, but also the protection of property rights and interests of both the scope and intensity of any comparable legislation of extraterritorial infringement liability. is worth noting that, "<Tort Liability Act"> Article 2 of the form of tort liability than "damages" A, which is only made "tort liability" without further explicit form of liability, the specific case of what liability should apply, should "in accordance with this Law," the specific provisions on liability apply.

(B) the type of infringement of property loss
Interest in property as an important part of civil rights, including property rights, intellectual property rights, options, and other properties with property rights, property rights infringement liability that the property rights to damages for the object. In general, loss of property is divided into the following categories: First, invasive of another property caused damage to property. For direct loss of property rights, applicable <<Tort Liability Act "> the provisions of Article 19 of recovery, that violations result in property damage, property loss according to market prices when the compensation standards as the market value at that time the damage occurred. Second, the infringement of intellectual property of others caused damage to property. intangible property and tangible property damage in tort compensation for the difference lies in how to determine market value. Intangible property rights, showed more potential, the value of stealth, with a combined property and personal rights of the compound, and the intellectual property interests in the intangible value of its scalability and its unique approach to the existence and protection of the Court trial brought new challenges. precisely because intellectual property rights infringement is unique, so that the wrongdoer bear the responsibility of tort law to regulate them by the individual. Therefore, for intellectual property infringement, should first apply the provisions of a single law, including "< PRC Copyright Law "> Article 48," <PRC Patent Law "> Article 65 and" <PRC Trademark Law>> Article 56. Third, equity and other property against damage to property caused by . shareholders made by law for investment in corporate affairs and the right to enjoyment of property rights, infringement of property damage caused by equity, it shall bear the corresponding liability of infringement. Links http://www.hi138.com Research Papers Download Third, property rights infringement damages calculations: Interpretation and Application
In determining the nature of property rights infringement damages after the loss to define the scope of the property. Whether the calculation of the loss as purely technical issue, [10] was classified as a question of fact, can be measured by specific and substantive departments to determine, on cases for individual treatment. [11] calculation of the loss in the French case as a question of fact already embodied. [12] Because this approach ignores the issue of legal damages, the lack of certain legal rules, the calculation most of them will depend on the evaluation of the individual judge, so not entirely appropriate. I believe that the loss calculation should take into account the dual nature of fact and law that findings of fact and value judgments of the integration. However, there are specific rules for property losses in tort liability in addition to < <Tort Liability Act "> Article 19, the no viable operating more detailed approach, therefore, property rights infringement damages calculations Guize to be refined, the need for fine-induction judicial practice to enhance and then into judicial interpretation.

(A) the benchmark time of loss
Establishing property rights infringement damages aim to fill the interests of the victims deserve the loss. If the price of the standard of damages can not be determined alone by the free will of the judges ruling, then the decision is bound to become arbitrary conclusions, the different sub-co phenomenon will also increase, giving rise to endless disputes the parties, to the detriment of judicial authority, and intensify social contradictions. Therefore, the law should provide compensation for loss of time to accurately determine the uniform rules to be successively played only indisputable functionality. reasonable standards to determine the price of damages, the tort occurred and the damage found in the fact that point in time, the start time point litigation, litigation and other end point in time should become the basic considerations. according to <<Tort Liability Act "> 19 Ordinance, the property subject to tort against property in accordance with prevailing market prices to determine the amount of compensation. This provision makes the judicial practice of the time damages have relatively uniform criteria, reasonable to avoid price fluctuations may be due to caused controversy. Of course, we should not "Tort Law"> absolute requirement of Article 19 in specific judicial practice can learn from other successful practices. For example, the court held that the Taiwan region of China, for damages determination "should be subject to the market price of the request." [13] property damage to the two time points to determine the way though inconsistent, but each is relatively reasonable, it can not blindly deny them in any way.

(B) a single standard with multiple standards
Detailed view of, "<Tort Liability Act"> Article 19 criteria in the calculation of damages on the alternative use of two different calculations. The former is above the basic single standard: "in accordance with market prices" the latter is a multiple criteria: by "other means" calculation. The two calculation standards, while not contradictory, but in the Application process should be understood to have priority. Generally speaking, only in accordance with market prices can not be determined only when other methods should be applied to the calculation rules. due to "other means" of expression and the actual identification consistent with the characteristics of fuzzy and difficult, therefore, other means of calculation should follow the appropriate Application of universal rules. Long words, on against a property, when the laws, regulations, standards corresponding calculations, which should be calculated using the standards, laws, regulations do not provide the standard calculation, calculation standards agreed upon by the parties through consultation or negotiation to determine the amount of property damage. In addition, substantive departments of Justice In the above criteria are not achieved, the referee also determined according to the principle of equity compensation.

(C) the formula of choice
Losses include direct losses, indirect losses and pure economic loss. To determine the direct losses, in addition to extra based on market price, depreciation of objects to be considered. For many years the property, the damages must be a corresponding depreciation of the market price. But not distribution of property on the market, you can use other ways of calculating, such as the well-known antiques to professional bodies can be used to determine the way scientific assessment.

For the indirect loss and pure economic loss, calculated that difficulty is part of the loss can not be quantified. In general, you can use the following analogy of the two calculation methods: one is the average income approach, he incurs the infringement occurred some time before The average income loss as a standard to judge, and second, similar comparison, Ji and being infringed by the operating conditions can be quite the same time period in the average yield loss to judge as the standard. Of course, these calculations is the absolute wrong way , and also considering the operating season, the property size, management ability and other factors, on this basis, the calculation of the formation of a more rational way, making the amount of loss compared with the approximate amount of compensation. Therefore, in determining the specific amount of compensation , you can use the following formula: original value = original price - original price effective time × ÷ have spent time. In China, there are also departments for the judicial practice of "direct loss + consequential loss value" calculation method, which indirectly loss is calculated as: indirect losses = value added per unit time × impact on performance of the time. [14] It is also regarded as a more reasonable method of calculation.

IV Conclusion
The issue of liability for property rights infringement dispute is not only how to determine the scope of property damage, loss calculation rules and other technical problems in judicial practice, the qualitative property infringement, the burden of proof, inspection appraisal and evaluation of technical means, legal norms and other issues mixed is the calculation of damages be take into consideration. Therefore, property rights infringement liability can be in the interests of the reasonable and fully realized, depending on the joint action of various specifications. <<Tort Liability Act "> just for property tort liability exposure to the referee to determine and provide a simple platform, you need to rely on sound interpretation of the law judge's judicial experience and skilled use of the extraction, and then continue to judicial interpretation, legislative interpretation and even the legislation itself provides refined operational strong rules to specify property rights infringement liability calculated the various scientific standards, up to the loss of the infringed the law to make reasonable compensation effect.




Notes:
[1] See Gaoping: <<On the type of knowledge of civil law position and the path from Research --- start >>,<< Law and Business Research "2009 2.

[2] See [United States] Kenneth • S. Abraham, Albert • C. Tate Selected: <<Restatement of Torts - Outline>>, Xu Chuan Xi such as translation, Law Press, 2003 edition, p. 432.

[3] See Civil Law Committee of the NPC Standing Room: <<People's Republic of provision in the Tort Liability Act, legislation and relevant provisions of the reasons>>, Beijing University Press, 2010 edition, p. 72.

[4], Professor Liang Huixing its auspices <"China Civil Code" Proposal Draft> Article 1577 of the proposed provisions in the pure although not expressly regulate the loss of economic benefits, but the implied meaning of compensation for pure economic loss. See Liang Huixing editor: <"China Civil Code draft of" legal Press, 2003 edition, p. 312.

[5] See Zhang Bao, Zhang Xiaoyi: <<On a purely economic loss of several basic problems >>,<< Law Journal>> 2007 No. 4, [Italy] Mauro • Busa Ni, [U.S.] Vernon • Valentine • Palmer Editor: <"The European law pure economic losses>>, Zhang Xiaoyi, Zhong Hongming translation, legal Press, 2005, p. 2.

[6] <"The European Tort Law Basic Policy"> Article 2:102 (4) provides that the contractual relationship of pure economic interests or the scope of protection may be more limited. In this case, even if the perpetrator's interest must be was evaluated as lower than the victim, also should be noted that the perpetrator is still at risk of the special and close relationship, or the perpetrator knew their actions would cause injury to particular facts. See European Group on Tort Law: Principles of European Tort Law Text and Commentary, 2005, SpringerWien, NewYork.

[7] [8] [10] [12] See has Shixiong: <<Compensation Principle>> China Politics and Law University Press, 2001, p. 15, p. 273-238 pages, p. 161, 161 page.

[9] [13] See Liang Huixing: <"China mainland Tort Liability Act (a)>>, http://WWW.privatelaw.com.cn/new2004/ztyj/ ..% 5cshtml% 5c20100807-225600.htm, 2010 -08-20.

[11] See Huang Maorong: <<Law and Modern Civil Law>> China Politics and Law University Press, 2001, p. 247-248 pages.

[14] See Yang Xiumei such as: <<property damage to the Legal Issues>>, http://dyzy.chinacourt.org.public/detail.php? Id = 19375, 2010-07-10. Links to Research Papers Download Center http://www.hi138.com