A Study On Disgorgement Damages In Tort

Disgorgement damages in tort (ex delicto) have drawn attention abroad long time ago and massive research has been done in this area; while in China, it is still a relatively unfamiliar term in academia and the related research is comparatively weak. In2010, Tort Law of China stipulated the "disgorgement damages" rule in article20. Although "disgorgement damages" is not a strange issue in the judicial practice in China, the legislator has not paid enough attention to "disgorgement damages in tort". Questions as what role does the rule of "disgorgement damages" play in our tort law mechanism, and what are its function, nature and scope of application still need to be answered.Article20of Tort Law of the China concentrates on adjusting the benefits obtained from a tort to a personal right or interest. However, article20only regulates the action of infringement on personal rights. What about infringement on property rights? Is the principal of compensation sequence of "damages compensation firstly, disgorgement damages secondly, negotiation compensation thirdly, court decision at last’ reasonable? All those will be tackled in this paper.The discussion of disgorgement damages in tort leads to another hot issue in the civil law theory, the commercialization of personal rights. In traditional civil law, personal rights which aim to protect the interests related to the person are definitely separated from property rights which intend to protect the property. The difference between them leads to different remedies. However, with the development of society, the foundation of the separation between personal rights and property rights happens to shake. Personal rights are no longer limited to simple personal interests and property rights begin to emerge in the personal rights. Therefore the emergence of new legal relationship inevitably requires the response from the law to regulate. Consequently, the commercialization of personal rights comes into academic discussion. For resolving this problem, there are two perspectives generally in academic circles:one is to stick to the traditional dualistic system of rights, also known as the internal solution, classing the commercialized personal rights into personal rights; the other one is to break the traditional dualistic system of rights, also known as the external solution, considering the commercialization of personal rights as the third type of personal rights, such as intellectual property, etc. This paper argues that we should take "disgorgement damages in tort" as an independent right in dealing with the commercialization of personal rights. The paper divides into five chapters as follows:The first chapter:bringing up the issue. Three cases related to infringement on personal rights are introduced to summarize the judgment standard in judicial practice in China for such issue. The paper concludes that there is provident progress as well as deficiency in dealing with the infringement on personal rights by the court in recent years.The second chapter:the overview of the "disgorgement damages in tort". This chapter mainly introduces the concept of the "rule of disgorgement damages in tort"The third chapter:breakthrough made in the plight of the traditional personal rights. This paper here mainly sets forth varieties of theories in commercialization of personal rights by scholars in China and abroad. These theories include "intellectual property theory","public right theory", etc.The fourth chapter:comparative analysis of the legal regulations on the "disgorgenent damages in tort".It mainly deseribes three different paths abroad:the conservative pattern (German), the open pattern (French), and the pragmatic pattern (United States). Compared with those foreign theories, there are different theories in domestic academic circles mainly including "unjust enrichment theory","punitive damages", etc.The fifth chapter:comments and reconstructions of "disgorgement damages in tort" in our country. In this part the author evaluates article20of Tort Law of China and indicates its shortcomings. Then the author puts forward detailed suggestions upon the "disgorgement damage in tort" system in China.