On The Rules And Regulations Of Disgorgement

The traditional civil damages which concentrates on the injuried party’s loss aims to cover loss.However,during a period of social progress and marketing economic development,some kinds of civil rights such as intellectual rights,claims to commercial secrets have become an ivisible asset which is productive directly.In the circumstances,the fact that the infringement of civil rights may make the claimant suffer no loss but make profit is challenging the theory of traditional civil damages.Sticking to the traditional theory fails to protect the civil rights but tends to encourage the infringement.Therefore,the disgorgement theory that aims to strip the profit from infringer attracts large attention.Although the articles about disgorgement do exist in legislation,the requirements of applying disgorgement damages which needs to sort out is not clarified:the nature of disgorgement is one of or some of the damages based in tort or contract or the unjust enrichment?This paper is centered on the rules and regulations.In addition to the introduction and conclusion.the full text is divided into four parts.The first part explains the rationale of disgorgement which is the commercialization of civil rights and the prohibition of making a profit from infringement.Besides,the part preliminarily discuss the possibility of applying disgorgement from the perspective of tort,contract and unjust enrichment, even sometimes the disgorgement is considered a totally new and independent right of claim.The second part starts from the basic theory of tort law and tort law case type to discuss the theory and practice of tort law and check the possibility of regulating disgorgement by tort law.First of all, theoretically, the function of tort law is not only compensation, but also deterrence. the benefit to the perpetrators of illegal deprivation of content enrichment deprivation is the legal effect on prevention the perpetrators means toinfringe on the rights of others to obtain illegal benefits, the proper meaning of the deterrent function of tort law. The constituent elements of the tort liability for damages, including violations, subjective fault, damage and causation: the existence of violations is not difficult to determine; the subjective fault request complies with Suntory deprived needed to reflect the application of moral disapprobation perpetrators; theoretically as is not in the traditional sense of the damage of one of the constituent elements of the tort liability actual or visual damage, is the infringement of a right, rather than the last compensable loss, damage and responsibility in the sense of responsibility for the establishment damage in the range on phase separation for include Suntory deprivation in tort Compensation provides a theoretical way out; complex causal relationship can not deny the benefit of an infringement of the Rules and Regulations deprivation, and determine causality more often an accumulation of judicial experience and technical methods..Secondly, through the analysis of relevant case judicial practice often content enrichment will be deprived of their responsibilities as tort damages, the court did not damage will be compensated as the constituent elements of the tort liability damages and substance confused, but usually the infringementbehavior of equity as tort liability constituent elements of damage. Therefore the judicial practice Suntory deprivation of tort law have fit. In addition, although the judicial practice rarely reference the provisions of Article20of the Tort Liability Act, but according to the provisions of the portrait rights, the right to a name, or the name of the right of the "Civil Law","Copyright Law","Trademark Law","patent the provisions of the law "," Company Law ", the Court of multi-Suntory deprived of a tort liability rather than liability for breach of contract..The third part starts from the basic theory of contract law and contract law-related enrichment deprivation case type to discuss check the possibility of regulating disgorgement by contract law.First, the theoretical level of contract law, the positioning from a functional point of view, as market transactions, the efficiency of the natural and the most important function of contract law, but this efficiency is relative, and is different from the absolute efficiency efficient breach path of the contract Law regulation Suntory deprivation does not reflect the function of the efficiency of contract law;from the point of the constituent elements of damages breach of contract, breach of contract is usually no-fault liability, such a subjective state of the responsibility of the party in breach did not ask, do not meet Suntory characteristics of deprivation; foreseeability rule is that the calculation of damages for breach of the rules, Suntory deprivation can not be coordinated with the predictability of rules.Second, the type of case the enrichment deprivation theory and Contract Law point of view, the company directors, senior management and the company will generally exist a labor contract, contract law generally considered the Suntory deprived of directors of the Companyillegal income that the company disgorgement field made by the senior management of the breach of the duty of loyalty, but through the investigation of actual cases, the court prefer clear Section149of the companies Act, the provisions of paragraph2of tort liability or essentially withwhich stipulates that the idea of tort law applies. Therefore, the case-Suntory deprivation actually kind of tort liability for damages rather than breach of contract damages responsibility in judicial practice.The fourth part starts the basic theory of unjust enrichment and unjust enrichment enrichment case type to discuss check the possibility of regulating disgorgement by unjust enrichment right of claims.First, the theory of unjust enrichment level, from a functional positioning, Components, return range, as well as with other requests the right relationship between the angle of view, the misappropriation theory seems to be regulation included the enrichment deprivation.Second, look at the from unjust enrichment judicial practice, far from theoretically emphasized the kind of independence and equality with other legal systems, such as contract law, unjust enrichment, it is in the practical application of the process performance a kind of auxiliary and other system is applicable to strengthen reason, it does not contain a specific application of the enrichment deprivation case type.This study for enrichment deprivation of legal regulation damages, the issue concerning a specific content, but also the problems faced by the modern civil rights protection. Source in the case are real cases from a court judgment or news reports. Possible path from the the Suntory deprivation regulation theory, based on the practice of judicial cases, and innovation in research methods and angle to try to explore how to resolve regulatory issues enrichment deprivation of individuals trying to come up insights to play a certain role in the reference path selection Suntory deprived of legal regulation.Suntory deprived of legal regulation not only has a theoretical depth, more on the practical operation of the difficulty, and to explore the fit of the theory and practice of enrichment deprivation and various departments law on this issue to start from the basic theory, but this problemthe research is still in its infancy, the research pending further enrichment deprivation.