Calculation Methods On Damage Compensation Amount For Commercial Defamation

This paper combines legislative documents and judicial decisions to classify the calculation of damages in commercial defamation disputes,beginning with current laws and regulations and juridical practice.On this basis,from the perspective of legal policy,optimization measures are proposed from the perspective of improving the accuracy of legislation and improving the standardization of juridical practice.First,at present,the stipulations of calculation methods on damage compensation in the commercial defamation that China's law makes are relatively rough,divided into loss calculation,profit calculation and discretionary compensation,without corresponding detailed rules and regulations.Second,through the preliminary empirical analysis of this article,most of the judicial precedents in China have adopted the discretionary compensation for commercial damages.Third,in general,there are conflicts between judicial judgments and legislative content in the calculation of commercial damages,and judicial decisions are highly uncertain(in the calculation method and the choice of discretionary compensation factors and the determination of the amount of compensation).And there is a big contrast between the amount of damages and the demand for relief.Forth,the reasons leading to this problem are mainly the particularity of goodwill gets less attention,the calculation standard of compensation is too vague,the burden of proof of damaged party is too heavy,the discretion of judge is too high and punitive damage is lacked.Based on the above reasons,this paper proposes the following three optimization ways to optimize the liability for commercial defamation in China: one is to improve the accuracy of legislation,including raising the emphasis on the particularity of goodwill,identifying the differences in the degree of subjective faults,improving the accuracy of the calculation standard for damages,alleviating the burden of proof of damaged party,limiting the discretion of the judge and including the punitive damages system;one is to promote the standardization of trials and reduce the randomness of judges in the application of the law,another is to introduce a third-party professional agency and assist in determining the amount of damages.So that the damaged party can safeguard their legitimate rights and interests through litigation,the attackers can get effective admonishment to reduce the misconduct of commercial defamation,and thus achieving the purpose of optimizing business norms and market economic order.