论违约可得利益的认定民商法学专业论文.docxVIP

1 1 2 2 Abstract Although Chinese contract law and relevant judicial interpretations provide that the attainable interest in breach of contract should be compensated, but it is controversial to identify the scope of compensation and calculate the damages in judicial practice. Therefore, this paper is to discuss the attainable interest in breach of contract for providing help to judicial practice. In addition to the introduction, the text is divided into three parts. The first part discusses the conception, characteristics and the guiding principles of the attainable interest. The compensation of damages in breach of contract should include two parts: First, the decrease of property and the increase of the cost caused by the breach of contract; another part is the interests expected by the right owner if the contract is fulfilled. The former is usually referred to as the loss suffered, the latter known as the lost profits. The main characteristics of the attainable interest include: hypothetical, relative certainty, property, and the value-added. The purpose of rule of the attainable interest is to fill the damage, and promote efficiency and the general guiding principle is entire compensation. Due to the fact that link of causality can be extended unlimitedly, most countries take certain measures or standards to constrict causality. This paper also introduces the economic analysis to guide the identification of attainable interest in breach of contract by efficiency. The second part discusses the rules of identification of scope of attainable interest. In the basic rule of the identification, the author analyses foreseeability rule and compare it with correspondence theory of causal relationship by using the method of law and economics and points out the deficiencies of China law in predicting time and risk distribution. In other rules of the identification, the author also discusses the rule of fault liability, the rule of mitigating the damage, the rule of gains o