On The Scope Of Damages For Infringement

Article 245 of the Property Law stipulates the right to claim damages for infringement.Is the claim right a tort liability? What is the basis of the claim? What is the scope of damages? There is a different understanding of these issues in this theory.The rationalization of these problems provides suggestions for the improvement of the lack of legislation in the possession system of the Property Law of China.This paper is divided into three parts:The first part discusses the legal basis of possession of the scope of damage compensation.The author believes that: First,the right to claim compensation for damages is the right to infringement.Second,the provisions of Article 245 of China's Property Law on compensation for damages in possession belong to the independent basis of claims.Third,possession can be the object of tort law protection.The right to possess possesses the object of protection under the tort law and is undoubtedly right.The possession of the right without possession of the right can be used as the object of tort law protection as long as it has legitimacy.Fourth,the infringement possession must conform to the four components of the infringement,namely,the violation of possession,the fact of possession,the causal relationship between the act of infringement and the fact of damage,and the subjective fault of the offender.The second part mainly compares the scope of damage compensation for foreign infringement,and analyzes the differences between national and regional legislation and theoretical doctrine.The author believes that most countries and regions have similar requirements for the relationship of possession of replies.They can learn from the beneficial practices of various regions and countries to improve China's provisions on possession protection systems.For example,the rights of unpaid beneficiaries do not enjoy suffocation,and they have obtained suffocation.The goodwill occupant can no longer claim the reimbursement of the general necessary expenses to the right holder.The third chapter discusses the legislative and judicial application of the scope of compensation for damages in China.The author believes that the damage that may occur in the infringement possession is mainly the damage caused by the use of income,the damage of the expenses and the damage of the liability.The scope of damages for the infringement of possession depends on the specific content of the possession.The scope of damages for infringement of property rights has the following conclusions: First,the damage of the use of proceeds.The legal effect of malicious possession has no attribution content,and there is no “possession damage”.A bona fide occupant shall use the proceeds of his possession for his or her presumed right.If the possessor cannot use the proceeds of the object because of the third party's infringement,he or she shall have the right to claim against the offender.Second,the damage to the necessary expenses.The malicious possession has the right to claim the necessary expenses.If the third infringer has compensated the value of the owner,the owner has the option.The owner has the right to claim the benefit of the unintentional management of the malicious possessor,and can also deal with the rule of unjust enrichment.The malicious occupant should have the right to return the claim for the benefit.The bona fide occupant has the right to reimburse the necessary expenses and beneficial expenses,and the beneficial expenses are limited to the extent that the value of the possession at the time of return still exists.If the possessor cannot request repayment from the claimant,he shall claim compensation from the infringer for the expenses incurred.Third,the damage of responsibility.A bona fide owner who uses the possession to cause damage does not need compensation,so there is no liability for possession damage,and the infringer cannot be required to bear the responsibility of destroying the possession itself.Based on the damage of the possession itself,the claimant as the possessor of the possession still has to claim damages from the infringer according to the damage of the value of the object.When the possession is infringed by a third party,the malicious possessor or the well-intentioned principal and the third infringer bear unreal joint liability.