论机会利益的损害赔偿

Study on the Damages for Opportunity Interests

机会利益的损失,在期待利益的损害赔偿中十分常见,在采取客观的计算方法时容易确定,对其予以赔偿获得认可;在信赖利益的损害赔偿中是否存在并具有确定性,存有疑问,是否准予损害赔偿,见仁见智。机会利益的确定,在个案中可以通过举证证明规则解决问题。既有的信赖利益的损害赔偿的设计目的及功能定位有待反思,不足以排除机会利益的损害赔偿。在缔约过失的场合,机会利益的损失是否超出当事人的合理预期应当具体判断,不可一概而论。就受害人获得双份赔偿/偿付赔偿的问题,可以通过排除赔偿成本的措施予以消除。裁判者应当严格把握机会利益损害赔偿的构成要件,从而避免诉讼浪潮。至于机会利益损害赔偿中的公共政策问题,中国法及理论确实应妥善考量。在具体裁判中,机会利益的损失必须是真正和实质的、而非臆猜性的,此为机会利益损害赔偿的核心要件。在确定机会利益损失的作业中,概率平衡的方法、机会损失的方法以及“事件链”和“替代事件”的操作技术,值得中国法及理论借鉴。

As to the damages for expectation interests, the loss of opportunity interests is a common concept. It is acceptable for the compensation of the opportunity interests loss since it is easy to ascertain by objective methods of calculation. However, it is doubtful whether the loss of opportunity interests exists in the damages for reliance interests, as well as to its certainty, which leads to different opinions on whether to agree on the damages or not. In individual cases, the certainty of opportunity interests loss can be addressed by rules of proof. The damages for opportunity interests can not be denied by the present theory of the purpose and function of damages for reliance interests. As to the issue of culpa in contrahendo, whether the loss of opportunity interests, which is out of the expections of the parties, should be decided specifically rather than giving a uniform answer. Should the measures to exclude compensation costs be taken, the victim will not get double compensations/reimbursements. Judges should set strict limitations to the constituent elements of the damages to the opportunity interests loss, thus the wave of litigations can be avoided. When it comes to the public policy related to the damages of opportunity interests, Chinese law and its theory should treat it carefully. In particular cases, the loss of opportunity interests should be real and substantial instead of speculative ones,which is the core of damages to the opportunity interests. In determining the loss of opportunity interests, it is very useful to use the the probability balance approach, the loss of opportunity approach and the operational techniques of “chains of events” and “alternative events”, which come from foreign countries but are worthy of application in Chinese law and theory.