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云计算-违约可得利益的认定和计算.pdf
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云计算-违约可得利益的认定和计算.pdf
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II
Breach identification and calculation of
interest
Abstract
Wang Zejian that: Claims for damages , said the most important in practice ,
everything and belongs , on the issue of civil law , in fact, as the core . The breach of
contract damages for the possible benefits are an important part of the contract
damages , its importance can be seen . But did not breach the possible benefits in the
identification and calculation of specific legal provisions given above , just some
vague , principled requirements and the possible benefits of the Supreme Judicial
interpretation is just a matter of principle , blurred regulations, so the judicial
practice operability is not strong, therefore , in judicial practice less compensation
for breach of contract clearly stated the possible benefits of the case. Aiming at this
problem , study finds breach consider the possible benefits and calculate urgent , it
will attempt to breach the possible benefits identified and counted as a brief analysis
and explanation , trying to analyze the judicial practice identified in this article about
the possible benefits and computing have some help . So in this paper, a case
concerning the possible benefits as a breach of the point of introduction , and then
began to introduce the relevant breach of the possible benefits of theoretical
knowledge and, ultimately, for the analysis of case studies .
In this paper, the use of survey research methods , literature research and case
study methods . I first recognized the importance and necessity I studied this issue
through a journal . Then start collecting identified on the possible benefits of default
and related materials calculation , and began to investigate, analyze , and
summarized , and through extensive literature survey , so comprehensive and
accurate understanding of the default master studied the possible benefits identify
and calculate
In this paper, the judicial practice in breach of the possible benefits of
III
identifying and calculating operability is not strong reality began to analyze the
possible benefits of default connotation and denotation come to define the possible
benefits of default , and the analysis of the classification of the possible benefits and
breach of contract defining principles in order to define the possible benefits of
default identified . In this paper, by analyzing the general approach and relevant laws
and regulations of other countries and our practice cases to come to practice
calculating the possible benefits of default general practice , and can be obtained by
summing the default method used to calculate the interest to come Breach
calculations related to the classification of interest. Therefore, this paper concludes a
breach of the possible benefits of several related species and according to the
calculation method of the analysis of these species suitable for the calculation of
their respective Breach interests.
Keywords : possible benefits shall calculate
目 录
中文摘要 ··························································································· I
Abstract ······················································································· II
目 录 ···························································································· IV
引 言 ······························································································1
第一章 案情及争议焦点 ·····································································3
一、案情简介 ···············································································3
二、争议焦点 ···············································································5
(一) 可得利益是否予以认可 ··················································5
(二) 可得利益该如何计算 ·····················································5
第二章 可得利益的认定 ····································································6
一、可得利益的界定 ······································································6
(一)可得利益的内涵 ······························································6
(二)可得利益的外延 ······························································9
二、可得利益与相关概念的区别 ····················································· 10
(一)可得利益与直接损失的比较 ············································· 10
(二)可得利益与信赖利益的比较 ············································· 11
(三)可得利益与履行利益的比较 ············································· 11
三、可得利益认定的限定规则 ························································ 12
(一)可预见规则 ·································································· 12
(二)减损规则 ····································································· 14
(三)过失相抵规则 ······························································· 15
(四)损益相抵规则 ······························································· 15
(五)案例中关于可得利益的认定的总结 ···································· 16
第三章 可得利益的计算 ································································ 17
一、 可得利益的计算的一般方法 ················································· 17
(一)外国法律的相关规定 ······················································ 17
(二)我国实践中关于可得利益赔偿计算的一般做法····················· 20
二、可得利益的计算方法 ······························································ 22
(一)约定计算方法 ······························································· 22
(二)酌定计算方法 ······························································· 23
(三)差额计算法 ·································································· 24
(四)反推计算法 ·································································· 24
三、各种可得利益的计算方法 ························································ 25
(一)利润 ··········································································· 25
(二)孳息 ··········································································· 25
(三)其他可得利益的损失 ······················································ 26
四、案例中关于可得利益计算的总结 ··············································· 26
结 论 ···························································································· 27
参考文献 ························································································· 28
个人简历 ························································································· 30
后记 ······························································································· 31
违约可得利益的认定和计算
1
引 言
随着市场经济的不断发展,作为市场经济发展的桥梁的合同也越来越受到
人们的关注,在复杂的市场经济交流中,合同的使用也越来越多,当然,合同
纠纷也自然会越来越多。大家为了尽可能多的维护自己的合法权益,所以就对
合同救济方式的要求越来越高。然而,对于违约可得利益的损害赔偿请求,在
司法实践中能得到法院支持的判决却少之又少。在本文的文中也会加以举例分
析法院不予支持违约可得利益的具体理由。其实,违约可得利益得不到司法机
关的支持的主要原因,还是因为法律没有对违约可得利益的认定给出一个具体
的说法也没有一个具体的标准,也没有给出计算违约可得利益损失的数额一个
方法。因此,我认为研究违约可得利益是必要的,也是紧急的,因为研究违约
可得利益损失的赔偿对于减少纠纷,促进经济的健康稳定发展,从而促进社会
主义和谐社会的进程都是极其有利的。
在我国现有法律下,涉及对违约可得利益的赔偿的有关规定也少之又少。
仅在《合同法》的第 113 条
[1]
中提及“可得利益”应予以赔偿。并且在 2009 年
7 月 7 日最高人民法院印发的《关于当前形势下审理民商事合同纠纷案件若干
问题的指导意见》的通知的第九条
[2]
和第十条
[3]
对违约可得利益相关分类和违约
可得利益认定和计算的基本原则作了较为简单和笼统的规定。但是这 3 条法条
也仅仅只是抽象并且笼统的规定可得利益应该得到赔偿,可得利益的几种类型
以及可得利益的计算原则,并没有涉及到可得利益的具体认定和如何准确计算
可得利益的价值。
[1]
《合同法》113 条:当事人一方不履行合同义务或者履行合同义务不符合规定,给对方造成损失的,损
失赔偿额应相当于因违约所造成的损失,包括合同履行后可以获得的利益,但不得超过违反合同一方订立
合同时所预见到或者应当预见到的因违反合同肯定能造成的损失。
[2]
第 9 条:在当前市场主体违约情形比较突出的情况下,违约行为通常导致可得利益损失。根据交易的性
质、合同的目的等因素,可得利益损失主要分为生产利润损失、经营利润损失和转售利润损失等类型。生
产设备和原材料等买卖合同违约中,因出卖人违约而造成买受人的可得利益损失通常属于生产利润损失。
承包经营、租赁经营合同以及提供服务或劳务的合同中,因一方违约造成的可得利益损失通常属于经营利
润损失。先后系列买卖合同中,因原合同出卖方违约而造成其后的转售合同出售方的可得利益损失通常属
于转售利润损失。
[3]
第 10 条:人民法院在计算和认定可得利益损失时,应当综合运用可预见规则、减损规则、损益相抵规
则以及过失相抵规则等,从非违约方主张的可得利益赔偿总额中扣除违约方不可预见的损失、非违约方不
当扩大的损失、非违约方因违约获得的利益、非违约方亦有过失所造成的损失以及必要的交易成本。存在
合同法第一百一十三条第二款规定的欺诈经营、合同法第一百一十四条第一款规定的当事人约定损害赔偿
的计算方法以及因违约导致人身伤亡、精神损害等情形的,不宜适用可得利益损失赔偿规则。
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