摘要
於被害人因為損害事故發生而不能使用系爭物時，多數文獻認為，若被害人未因此實際支出費用，亦未受有營業收入損失，則在作為基礎財產上損害概念之「差額說」下，並無財產上損害可言；又於現行法下，被害人亦不能對於其因此所受之非財產上損害請求賠償。此即學理上所謂「物之抽象使用利益喪失」之問題。 惟依本文所信，前述問題實係向來見解錯誤地解釋適用「差額說」所致。故本文嘗試回歸差額說，指出物之使用利益作為民法中獨立的法律上利益，且應有具備市場價值之可能，倘若被害人於損害事故未發生時，將實際使用系爭物，卻因損害事故發生而不能使用系爭物，其因此未能享有之系爭物使用利益，即是差額說下之財產上損害，而為依民法第216條規定應予賠償之所失利益。 而物之使用利益喪失的賠償方法，有回復原狀及金錢賠償二途。在物之使用利益喪失尚有回復原狀可能時，被害人可透過使用與系爭物同等種類及價值之替代物，以回復至如同損害事故未發生時得使用系爭物之狀態，於方法上，可依民法第213條第1項請求加害人提供替代物，或依同條第3項於自行使用替代物或備用物後，請求加害人賠償必要費用。惟若物之使用利益喪失已回復原狀不能或顯有重大困難時，依民法第215條規定僅得請求加害人以金錢賠償之。此外，依民法第196條規定，於物之使用利益喪失尚有回復原狀可能時，被害人亦得選擇逕向加害人請求金錢賠償。
並列摘要
If the victim is unable to use the thing in dispute due to the occurrence of the damage, most literature holds that if the victim has not actually incurred expenses or suffered a loss of business income as a result, there is no property damage under the “hypothesis of difference (Differenzhypothese)”, which is the basic concept of property damage, and the victim is not entitled to claim compensation for non-property damage under the current law. This is the so-called “loss of abstract interests in the use of things” in theory. However, this article believes that the above problem is caused by the misinterpretation and misapplication of the “hypothesis of difference”. Therefore, this article tries to return to the hypothesis of difference and points out that, as the use of the thing is an independent legal interest in civil law, and should have the possibility of market value. If the victim is unable to use the thing in dispute due to the occurrence of the damage when the victim would have actually used the thing in dispute before the occurrence of the damage, the benefit of the use of the thing in dispute that the victim is unable to enjoy as a result of the occurrence of the damage is the property damage under the hypothesis of difference, and is the “lucrum cessans” that should be compensated according to Article 216 of the Civil Law. Compensation for loss of use of a thing can be in the form of restitution or monetary compensation. When the loss of interest in the use of a thing can still be restored to its original state, the victim can use a substitute of the same type and value as the thing in dispute to restore the state of the thing in dispute to the state it would have been used in if the damage had not occurred, and the method is to request the tortfeasor to provide a substitute thing in accordance with Paragraph 1 of Article 213 of the Civil Code, or to request the tortfeasor to compensate the necessary expenses after using the substitute thing or the spare thing by himself/herself in accordance with Paragraph 3 of the same Article. However, if the loss of use of a thing cannot be restored to its original state or if there is significant difficulty in doing so, the tortfeasor may only be requested to pay monetary compensation in accordance with Article 215 of the Civil Code. However, according to Article 196 of the Civil Code, if the loss of use of a thing can still be restored to its original state, the victim may choose to request monetary compensation from the tortfeasor.