| The lost profit is the central concern of the contract law and the purpose of the parties entered into the contract, the protection of which is related to the enthusiasm to exchange and the growth of the overall economic interests, therefore almost all the countries set a higher degree of protection of it. Although Chinese Contract Law sets clearly the rules of the lost profit, the judicial practice is much more cautious, conservative or even negative, that is, few Chinese courts support plaintiffs' claim for their lost profit because of its uncertainty. In the eye of Chinese courts, the uncertainty of the lost profit can be mainly classified into two kinds, one is the uncertainty of proof, and the other is the uncertainty of calculation. To change the predicament between Chinese law and judicial practice, a certainty rule of lost profit should be established on both procedural and substantive perspectives. From the procedural perspective, what we should do is to lower the proof standard of the lost profit. Not only should we refer to the advanced experience in the United States, borrow its reasonable certainty standard of contract damages, and establish the proof standard of fact-amount distinction, but also full play the initiative, wisdom and discretion of judges to support the plaintiffs' claim for their lost profit. From the substantial perspective, we advocate "business" or operating profit as its central clue to set and categorize the calculation standard of lost profit, which includes the standard of one's own operating profit, the standard of others' operating profit, the new business standard and the alternative standard. Only in this way, can we protect effectively the non-defaulting party's lost profit and expectation interest, and enhance the applicability and operability of China's remedy system of contract law. |
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