Abstract：The determination of the loss caused by delay in performance in monetary obligation is always a focus in judicial practice. There is a huge difference in verdict result. As for “interest loss”, it is lack of relevance and rationality to calculate the loss by a certain proportion of the arrears or refer to the upper limit of the interest rate of the loan contract. If the loss is confirmed by the idea of legal fruits, the calculation method is difficult to determine and the deposit interest rate is too low. When the loss of the observant party cannot be calculated, it can be determined by the profit of the defaulting party. The defaulting party reduces the cost by using the funds which should be returned to the creditor during the overdue period. The cost can be identified as the bank loan interest, which is calculated by LPR. The penalty interest provisions in the judicial interpretation of the Supreme People's court should be special legal compensation, and should be applicable to all paid contracts unless the delayed party is not punitive. For other losses, when the contract can reflect the losses to be incurred due to delay, when the debtor knows the purpose of the payment and the consequences of delay at the time of conclusion of the contract, and when the creditor borrows money from a third party and generates interest, the loss shall be compensated.
陈安然. 论金钱之债迟延履行的损失认定[J]. 浙江工商大学学报, 2023, 37(1): 160-172.
CHEN Anran. Determination of the Loss Caused by Delay in Performance in Monetary Obligation. Journal of Zhejing Gongshang University, 2023, 37(1): 160-172.
2023, Vol. 37 
浙公网安备 33011802000512号