为完全赔偿原则声辩——中国损害赔偿制度的价值迷失与回归路径

A Defense of the Principle of Full Compensation——The Value Loss and Regression Path of the Damage Compensation System in China

完全赔偿原则是损害赔偿制度的价值归宿,体现了矫正正义的基本价值,并且符合财产规则厘定的权利保护秩序。损害赔偿请求权是受害人遭受侵害的主观权利的继续,是对不法行为导致的财产变动的矫正。完全赔偿原则不适用于无过错责任和公平责任,因为这些责任不以矫正正义为基础。差额说是实现完全赔偿原则的技术方案。损害归责可以应对结果损害过于庞大的问题,并且与完全赔偿原则不冲突。与有过失规则和损益相抵规则也是完全赔偿原则范围内的必要修正。完全赔偿原则的例外是一般责任减轻条款与定额赔偿制度。精神损害赔偿和财产损害赔偿以双轨制的方式各自独立发展,完全赔偿原则不适用于精神损害赔偿。

The principle of full compensation can be justified with two arguments,one is philosophical and the other is economical.From the philosophical view,the principle of full compensation is the value orientation of the damage compensation system,embodying the basic idea of corrective justice.The scholars of natural law in modern era developed and applied the idea of corrective justice of Aristotle and based their justice theory on it.Grotius believed that damage was the result of the infringement of rights,and the injured had the right to restore what was taken from him,which was the essence of damage compensation.Damage compensation should fully compensate for the damage suffered.Baumgarten and Gundling on the other hand expressed the corrective justice of the principle of full compensation in mathematical way.They argued that the injurer should compensate the difference between the injured situation and the ideal situation.This was the original version of the difference theory of the German Civil Code.The claim for damage compensation is the continuation of the subjective right infringed upon by the victim and the correction of the improper property change caused by the illegal act.From the view of the economic analysis of law,the principle of full compensation can be justified by the domination of property rules over liability rules.Since the principle of full compensation regards the compensation as the continuation and another existing form of the infringed subjective right,the full compensation hence meets the right protection standard of “property rules”,which either gives the victim an injunction against the infringement or gives him a recovery which brings him back to the status where he would have been in.It avoids the not enough compensation in liability rules and the resulting wide spread private takings.Since the principle of full compensation is based on the corrective justice,it does not apply to no-fault liability and fair liability,because these liabilities are not based on corrective justice,rather on distribution justice.The difference theory is the technical solution to achieving the principle of full compensation.To restore the ideal situation,which would have existed without the infringement,the injurer can make the injured back to the situation he should have been in.Such a theory is formally expressed in the German Civil Code,which should have been taken into the Chinese Civil Code.The difference theory may compensate too wide resulting damages,which brings unfair results for the injurer.But the damage imputation can deal with the problem of overly huge resulting damages.The rule of contributory negligence and the rule of offsetting profits and losses are also necessary amendments within the scope of the principle of full compensation.With the amendment of damage imputation and the contributory negligence,the principle of full compensation has a new expression,which is that only those damages,which can be attributed to the infringement of the injurer,can be fully compensated.The exceptions to the principle of full compensation are general liability mitigation clauses and fixed compensation systems.A general liability mitigation clause mitigates the huge liability of the injurer according to his poor financial situation and comparative little fault.The fixed compensation system gives the injured a fixed sum calculated by given coefficient.In the law of China,the loss of future income out of physical disability is calculated with the coefficient of annual average net income of citizens.It applies the scheme of fixed compensation and hence is an exception of full compensation.Mental damage compensation and property damage compensation develop independently in a dual-track manner,and the principle of full compensation does not apply to mental damage compensation.