侵權法的機會損失規則研究

Research on Opportunity Loss Rules on Tort Law

機會利益作為一種具有一定價值的財產受到當代侵權法的高度重視，兩大法系國家的侵權法均對機會利益的保護問題做出了肯定或者否定的回答。損害的確定性理論規避了因果關係理論存在的問題，具有科學性和合理性。在確定被告就其過失行為對他人遭受的機會損失承擔侵權責任時，法律原則上應當採取按比例賠償原則，輔之以法官的自由裁量原則。

As a kind of valuable property, opportunity interest is attached great importance by the contemporary Tort Law, the Tort Laws in the states of Civil Law System and the Common Law System had made an either negative or affirmative answer. The deterministic damage theory unified science and rationality, because it eludes the problems existed in the causation theory. In determining how the defendant undertaking the tort liability for other’s opportunity loss that caused by his negligent act, the law should adopt proportional approach as principle, auxiliary by contributory discretion principle of the judge.