《民法典》背景下海上违法养殖的损失计算方式厘定

Calculation of the Amount of Loss to the Unlawful Ocean Breeding in the Context of the Civil Code

实证分析表明,海上违法养殖损失计算方式在审判实践中存在偏差,表现为养殖物成本标准和市场价格标准不统一、项目构成差异大、损失计算不够精确。原因在于在法律适用上,对损失、收入的外延界定不清,混淆侵权法与行政法的作用,直接以法律原则作为裁判依据;在事实认定上,未考虑养殖物、养殖设施具有违法铺设的特殊性。为正确厘定海上违法养殖造成的损失,需要明确养殖物损失的直接损失属性,纠正养殖人违法养殖后的增值部分直接丧失所有权和市场价格标准会使行为人获利的两种错误观点,在此基础上结合违法铺设状态和对《民法典》“其他合理方式”的解释来合理确定计算方式。非法状态的财产,其损失应当以市场价格扣减其回归合法状态的费用的方式计算:养殖物损失以市场价格为基准扣减收获费用;养殖设施损失以市场价格扣减清理、回收费用。

An empirical analysis based on judgments shows that there are deviations in the calculation of the amount of loss to the unlawful ocean breeding in trial practice.Deviations include contradiction between prime cost and market price,diversity in items and inaccuracy in the calculation of the amount of loss.There are two reasons for these deviations.Firstly,in law application,the extension of loss and income is not clearly defined,the role of tort law and administrative law is confused,and the legal principle is taken as the basis of judgment directly.Secondly,illegality in laying products and facilities is not considered in fact-finding.To rectify these faults,it is necessary to make clear that damage to the cultivated aquatic products is direct damage and refute two wrong arguments that victim's right on added value in unlawful ocean breeding shall be extinguished and victim would earn profit if compensation is made on the basis of market price.Illegality nature of the breeding and interpretation of “any other reasonable means” in the Civil Code should be taken into consideration in the calculation of the amount of loss.The amount of loss to the property in illegal condition should be calculated per the market price and the cost to bring property into legal condition will be deducted,that is,the amount of loss to the aquatic products and facilities should be calculated per the market price with the cost of reaping and recovering deducted respectively.