我国减损规则的民族性探源

Primary Dicussion on Nationaliy of Mitigation Rule in China

在英美法系国家中,减损规则要求受害方积极采取有效措施减少违约带来的损失;而我国减损规则的规定仅限于要求受害方防止损失的扩大,相对于前者明显较为狭隘。该制度传入我国后发生这种变化,原因之一是受到了我国传统民族哲学思想的影响。在损害赔偿请求中,减损规则的原则揭示出法律的民族特性。

Under the common law system, the aggravated party is required by the mitigation rule to reduce the loss caused by the breach through effective and active measures. But under Chinese law, the aggravated party is only required to take effective measures to avoid augmenting the loss. Compared with the former, the latter is obviously much narrower. One reason causes the change is that tile rule has been influenced by the traditional philosophical thinking of China. In the requirement of damage compensation, the principle of mitigation rule shows the nationality of law.