The Study Of The Compensation On Infringing Reputation

Modern social, reputation in enterprise such as reputation in personal.Can't conceive how a product without reputation carries out its value conversion;Can't even conceive how an enterprise without reputation has a foothold in the market. For any manager, the reputation means competitive advantage and the property benefits brought by it, but says for some illegal competitors, breaking and slandering others'seems to be to also become the shortcut which acquires "success".Because the reputation property is worth of convex now, the behavior which breaks and slanders others'reputation is also particularly arrestive, the protection of reputation has already become the point of law concern. But the related system which has imperfection,make the purpose of reputation protect hard, among them shortage of reputation indemnity system can't bring itself into action. This text goes into some definition of reputation and reputation right's basic problems, at clear in meaning concept,by the study to the scope and the quantity of our country's reputation indemnity at present,put forward the basic way of perfecting infringement indemnity of our country's reputation system.The article is totally divided into four parts. The first part analyses the concept,the characteristics,the attribute of the reputation and reputation right, analyses the protection condition of our country's reputation right.To the definition of reputation, it may be have different opinions.After enumerating briefly,writer put forward a definition which is approbated by our country's scholars, namely the reputation means the objective evaluation which the society gives particular productions executives concerning a management ability such as production, merchandise, and service quality etc. From the concept of reputation,The characteristics of the reputation are abstraction,opposite indetermination, value and dependence.The reputation right is the reflection of reputation in the juridical,is reputation subject enjoys the exclusive right which is created in the economic activities by law and possess the reputation to be free from the right for violating, it is a kind of right which has a property contents, being placed in to change continuously because of abstraction and variety of reputation.Although the reputation right got the approbation of educational circles, belonged to actually what right, the scholars have different opinions.The writer induces many theories as two kinds of assertions:"The personality right says" and"the intelligent property right says"."The personality right says" denies the essence difference of the reputation right and the right of the legal person reputation, its reason can hardly establish.Although"the intelligent property right says" has numerous advocators,the writer thinks,because the scope and contentses of intelligent property right all haven't had an end conclusion, this kind of right is still a kind of right which is growing, will pack some new civil right which has dual attribute of property right and the personal rights into the intelligent property right, actually count for little.Owing to two kinds of theories all can't announce the law attribute of reputation right accurately, the writer sets out from the commercial subject, thinks it should be more accurately defining it as commercial personality right.The article introduces the content and characteristic of the commercial personality right,by analyzing,classifies the reputation right as commercial personality right, since announced the essence attribute of it as personality right, again reflect the property attribute according to the commercial subject's exploitation.For protection condition of our country's reputation right at present, the author compares lawmaking experience of all countries with lawmaking condition of our country,thinks it should consider a few problems to perfect our reputation right system.Firstly, law position of reputation right.Secondly,law method of reputation right protecting.End, the law responsibility which violates reputation right.The second part analyses the indemnity scope and the quantity of our country's reputation.Making up for loss is the main way which undertakes the civil responsibility of the reputation infringement,for the victim, is also the best path which relieves his damage.But, the indemnity of reputation has a controversy in the law system.The biggest problem has three aspects: The first,the relationship between reputation indemnity and spirit indemnity.To this, two kinds of clearly contrary standpoints existed currently, the writer thinks, the reputation right is a kind of invisible, non- material right,requesting spirit indemnity when the right is infringed lack fact according and legal theory basis, should take into clearness from the theories to this.The second, the scope of reputation indemnity.For this problem, in addition to spirit indemnity, mainly whether property loss should include indirect loss existences a rift.Writer thinks it should cover indirect loss among them. The third,the assurance of the quantity.All countries are widespread to adopt two kinds of methods to define the indemnification quantities,one basis is the loss which the victim suffers because of infringement behavior.The other basis is the profit which the violator obtains.Our country's adoption is the same,but, these two kinds of methods still exist a lot of blemish.The assurance of the reputation indemnity sum mainly has two kinds of methods in the judicial practice:While settling the standard according to the expense for removing the influence;The other way is assuring it on the basis of considering various conditions.Then,the author listed three kinds of new methods to assure the reputation indemnity, evaluating, consulting,contracting,and as to their gains or losses make the brief analysis.The third part inquiries into the application of punitive damages system in the reputation indemnity system.Punitive damages,also called exemplary damages or vindictive damages,the indemnification quantity which made by the court outruns the actual damage quantity, it has multiple functions,for example,compensate,punish and suppress illegal act etc.That system mainly adopts in the American Law System,however, its development not only produced influence to the American Law System, and to the other Anglo-American Law System and Continental Law System produced a certain influence.Punitive damages can encourage the victim to prosecute for the indemnification, make illegal act public and suppress the illegal act.Owing to this, the writer thinks, having a necessity to absorb beneficial experience of this system reasonably, leading the punitive damages system to the reputation indemnity.Certainly, the punishment indemnity isn't applicable to all infringement behaviors, we should combine the actual condition, ruling the apply scope,punish range and the tallest quota definitely etc.The last part is the basic thinking of perfecting our country's reputation indemnity system, from the basic principle, indemnification scope, assurance basis and calculation method three aspects elaborating to it.Reasonable indemnification principle, will can lead the person enforcing the law fairly, support the legal rights of reputation corpus well.First, the reputation indemnity should follow three principles,they are Compensate completely principle,Weigh the benefits principle and Punish principle.We should adopt the principle of"what indemnification basis a victim chooses should be decided by himself",for the basis of the indemnity of the reputation infringement, give the victim provide a rightful law guarantee to recover and remedy the loss because of reputation infringement.After solving the basis of the reputation infringement indemnification still faces how to compute losing.Three kinds of reference methods related have their merits, should adopt what concretely, still need a further study to this problem.