浅析违约可得利益损失赔偿
发布时间：2018-07-14 13:13
【摘要】：就我国的司法实践而言，在《合同法》颁布之后，关于违约赔偿范围包括可得利益已成定论，但在实践中，《合同法》第一百一十三条关于违约可得利益赔偿的规定很少被予以适用，真正能够判决赔偿的案例并不多，在审判实务中，违约可得利益赔偿始终是一个难点。本文试图对违约可得利益的相关问题作一浅析，以期对自身工作和司法实践的有所裨益。第一部分，主要阐述了违约可得利益的性质、特征及与相关法律概念的关系，以及违约可得利益损失的主要表现形式和其赔偿的必要性。第二部分，主要阐述了违约可得利益损失的四个限制规则：可预见规则、减轻损害规则、损益相抵规则和过失相抵规则，以及违约可得利益的计算的相关问题，揭示可得利益损失的三种主要类型，生产利润损失、转售利润损失和经营利润损的具体认定规则和标准。第三部分，，阐释了违约可得利益赔偿在司法实务中的证明标准以及举证责任分配，并着重论述了鉴定结论在违约可得利益赔偿证明中的运用。并且从法律规定的层面阐述了不能适用违约可得利益赔偿的情形。
[Abstract]:As far as the judicial practice of our country is concerned, after the promulgation of contract Law, the scope of compensation for breach of contract, including the available interests, has become a final conclusion. However, in practice, the provisions of Article 113 of contract Law on compensation for interests obtained by breach of contract are seldom applied, and there are not many cases in which compensation can really be adjudicated. In judicial practice, compensation for interests obtained by breach of contract is always a difficult point. This paper attempts to make a brief analysis of the relevant issues of the interests of breach of contract, in order to benefit the work of itself and judicial practice. In the first part, the author mainly expounds the nature, characteristics and the relationship with the relevant legal concepts, as well as the main forms of the loss of the interest of breach of contract and the necessity of its compensation. In the second part, it mainly expounds the four rules of limitation: foreseeable rule, mitigation rule, profit and loss offset rule and fault offset rule, as well as the relevant problems in the calculation of the benefits of breach of contract. This paper reveals three main types of loss of available profits, including loss of production profit, loss of resale profit and loss of operating profit. In the third part, it explains the standard of proof and the distribution of burden of proof in judicial practice, and emphatically discusses the application of the appraisal conclusion in the proof of interest compensation for breach of contract. And from the legal level of the provisions of the non-applicable breach of contract can be compensated for the interests of the situation.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
本文编号：2121763
[Abstract]:As far as the judicial practice of our country is concerned, after the promulgation of contract Law, the scope of compensation for breach of contract, including the available interests, has become a final conclusion. However, in practice, the provisions of Article 113 of contract Law on compensation for interests obtained by breach of contract are seldom applied, and there are not many cases in which compensation can really be adjudicated. In judicial practice, compensation for interests obtained by breach of contract is always a difficult point. This paper attempts to make a brief analysis of the relevant issues of the interests of breach of contract, in order to benefit the work of itself and judicial practice. In the first part, the author mainly expounds the nature, characteristics and the relationship with the relevant legal concepts, as well as the main forms of the loss of the interest of breach of contract and the necessity of its compensation. In the second part, it mainly expounds the four rules of limitation: foreseeable rule, mitigation rule, profit and loss offset rule and fault offset rule, as well as the relevant problems in the calculation of the benefits of breach of contract. This paper reveals three main types of loss of available profits, including loss of production profit, loss of resale profit and loss of operating profit. In the third part, it explains the standard of proof and the distribution of burden of proof in judicial practice, and emphatically discusses the application of the appraisal conclusion in the proof of interest compensation for breach of contract. And from the legal level of the provisions of the non-applicable breach of contract can be compensated for the interests of the situation.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
【参考文献】
相关期刊论文 前3条
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2 王卫国,凌湄;作为违约损害赔偿范围限制方式的可预见规则[J];辽宁工程技术大学学报(社会科学版);2003年01期
3 蔡春生;;试论国际货物买卖合同违约的损害赔偿责任[J];中外法学;1991年03期
本文编号：2121763
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