损害赔偿额之酌定:基于诉讼公平的考量

在损害发生得以证明,但损害大小难以证明或不能证明时,法院若判决驳回原告诉讼请求,将不符合诉讼公平的要求。为弥补这种因需完全证明带来的不公平,德日等国家和地区在理论上和立法实践中确立了法官损害赔偿额酌定制度。我国引进该制度时,在理论上应厘清概念的含义应为"损害赔偿额酌定"而非"损害赔偿额认定"。在实践中,应明确该制度的适用要件,并采取合理的酌定方法。

The Discretionary of Damages: A Consideration Based on Fairness of Litigation

The judge will reject the plaintiffs’ claim because they are difficult or failed to prove the amount of compensation,even though the damage facts are obvious,which is not in accordance with the equity and justice of litigation.To eliminate the problems of unfairness associated with strict proof,Germany,Japan and some other countries have established a system in theory and legislation practice,which the judge has the power to make discretionary awards.We should ascertain the meaning?of the?concept in theory is discretion,not accreditation when the system introduced into China.And the essence of this system should adopt lighten the standard of proof theory.We should clarify applicable condition and adopt proper method in practice.