In its judicial practice concerning the issue of compensation for lost profits,China often a-dopts the"certainty"standard,commonly rejecting the plaintiff's right to compensation on the basis that the lost profits lack certainty.In other words,the damage to potential benefits must be proven to a con-siderable degree of certainty for the plaintiff's claim to be supported.This requirement in evidence and procedural law is distinctly different from the rules of causation and foreseeability in substantive law.However,the certainty rule lacks a basis in statutory law in China and should be abandoned in favor of returning to the clearly stipulated preponderance of evidence,thereby relaxing the proof standard for loss of lost profits.The application of the proof standard rule is not a matter of syllogism;a variety of sub-stantive factors together govern the court's judgment on whether the plaintiff's evidence meets the proof standard.If the amount of damage to lost profits is inherently difficult to prove,then the judge should be given the discretion to determine the amount of compensation when the fact of damage is confirmed and the plaintiff has exhausted all means of proof.
Certainty RuleStandard of ProofForeseeabilityPreponderance of EvidenceFact and Amount
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