违约可得利益损失的确定规则
刘承韪违约可得利益损失的确定规则
Certainty Rule of Lost Profit due to Breach of Contract
期刊名称：《法学研究》
期刊年份：
作者：刘承韪
单位：中国政法大学比较法学研究院
中文关键词：违约损害赔偿;可得利益;合理确定性;营业标准
英文关键词：damages for breach of contract;lost profit;reasonable certainty;business rule
中文摘要：
可得利益是合同法的中心关注，是当事人订立合同的目的所在，对其保护事关当事人交易的积极性和社会整体经济利益的增长，因此各国的违约损害赔偿制度对于可得利益损失普遍给予较高程度的保护。我国合同法等法律虽然明确设定了违约可得利益的概念和规则，但司法实践却表现得较为谨慎、保守甚至是消极，多数法院会因为可得利益损失的不确定性(证据不确定性和计算不确定性)而否定原告的主张。要改变我国法表达与实践脱节的现实困境，需要从程序和实体两方面确立可得利益损失的确定规则，一方面有效降低可得利益损失的证明标准，另一方面对可得利益损失的计算标准加以类型化，以有效保护非违约方的可得利益和期待利益，增强我国违约救济制度的适用性和操作性。
英文摘要：
The lost profit is the central concern of the contract law and the purpose of the parties entered into the contract, the protection of which is related to the enthusiasm to exchange and the growth of the overall economic interests, therefore almost all the countries set a higher degree of protection of it. Although Chinese Contract Law sets clearly the rules of the lost profit, the judicial practice is much more cautious, conservative or even negative, that is, few Chinese courts support plaintiffs' claim for their lost profit because of its uncertainty. In the eye of Chinese courts, the uncertainty of the lost profit can be mainly classified into two kinds, one is the uncertainty of proof, and the other is the uncertainty of calculation. To change the predicament between Chinese law and judicial practice, a certainty rule of lost profit should be established on both procedural and substantive perspectives. From the procedural perspective, what we should do is to lower the proof standard of the lost profit. Not only should we refer to the advanced experience in the United States, borrow its reasonable certainty standard of contract damages, and establish the proof standard of fact-amount distinction, but also full play the initiative, wisdom and discretion of judges to support the plaintiffs' claim for their lost profit. From the substantial perspective, we advocate "business" or operating profit as its central clue to set and categorize the calculation standard of lost profit, which includes the standard of one's own operating profit, the standard of others' operating profit, the new business standard and the alternative standard. Only in this way, can we protect effectively the non-defaulting party's lost profit and expectation interest, and enhance the applicability and operability of China's remedy system of contract law.
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