Research On The Discretion Of Compensation For Damage Of Reputation

For a long time,reputation tort research mainly focused on infringement composition and compensation for moral damages of reputation rights.However,in practice,there have been a large number of property damage cases that few people have studied.According to the Article 20 in < Tort Law of the People’s Republic of China > and Article 1182 in <Civil Code >(Draft)(Draft of December 16,2019),the “disgorgement damages” is allowed if the loss sustained by the victim is hard to be determined;If the benefit obtained by the tortfeasor from the tort is hard to be determined,both parties can make consultation about the compensation;If both parties disagree the amount of the compensation,the court shall determine the amount of compensation based on the actual situations.In judicial practice,because it is generally difficult for the perpetrator to infringe on the reputation of others to obtain benefits,the court often determines the damage to reputation property by discretion.However,there are a few specific regulations on discretionary compensation in China.According to the provisions of article 150 of < The Opinions on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People’s Republic of China(For Trial Implementation)>,if the right to personality is infringed upon and the right holder requests compensation,the court can determine the amount of compensation based on the fault level of the infringer,the specific circumstances,consequences and effects of the infringement;according to the provisions of article 10 of < Interpretation of the Supreme People’s Court on Several Issues in the Hearing of Cases Concerning the Right of Reputation >,the loss of production,operation and sales caused by the infringement of reputation can be determined according to the customer’s return of goods,termination of the contract and other losses.However,the <Civil Code> is promulgated soon,< The Opinions on Several Issues concerning the Implementation of the General Principles of the Civil Law of the People’s Republic of China(For Trial Implementation)> is about to lose its effect.It can be seen that there are few provisions that can be invoked,which is obviously difficult to deal with complex judicial practice.Therefore,it is necessary to conduct in-depth research on discretionary compensation.In addition to the introduction and conclusion,this article is divided into four chapters,and each chapter is summarized as follows:The first chapter is a preliminary discussion on the relationship between reputation right and property damage.By sorting out a large number of cases of damage to reputation right in judicial practice,this chapter first explains that damage to reputation right is related to property damage.After that,by discussing the relationship between the right of reputation of legal person,the right of reputation of natural person and property damage,further demonstrate the relationship between the right of reputation and property damageThe second chapter is to discuss the determination method of reputational property damage and the question of the determination method.This chapter divide into three part.The first part mainly discusses the way to determine the damage to reputation right property,and believes that due to the difficulty of proving the benefit of personality right property and the unavailability of reputation right,the damage to reputation property right can only be determined by discretion.The second partThe second and third parts sort out the legal norms for discretionary damage to reputation property and the method for discretionary compensation in judicial practice.After sorting out,it is considered that there are mainly two problems in judicial practice: First,it is unclear about the use of discretionary factors;second,it is unclear what kind of losses the right holder has suffered.Based on this,the article classifies the discretion in judicial practice into two categories: one is to classify the discretion in practice according to the infringement requirements,which can be divided into "factors related to conduct and fault","relevance to the consequences of damage" Factors ”and“ other factors ”.The second is to classify according to the losses suffered by the right holder,which can be divided into two types: the loss of available benefits and the elimination of expenses that affect the restoration of reputation.And through these two categories to discuss the problems in practice.The third chapter is the application of different types of discretionary factors.This section discusses two issues.One is which factors should be determined.The second is how these discretionary factors should be used.Regarding the first question,the article is classified according to the first category above,and considers that "the factors related to behavior and fault" should be determined.Although the traditional theory of complete compensation principle believes that fault is not a factor in determining the scope of damages,most of the damages to reputational property belong to situations where the scope of liabilityis unclear,and the principle of complete compensation is difficult to deal with such cases.Difficulties leading to the referee.Therefore,when determining damage to reputation property,"factors related to conduct and fault" should be taken into account;"factors related to the consequences of damage" directly reflect the loss of the right holder,and should be determined;in view of the concept of "other factors" is unclear,no discretion should be made based on it.In response to the second question,the article draws on the practice of Anglo-American law and considers that the "factors related to conduct and fault" should be used as a reference index to appropriately increase or decrease the amount of compensation in combination with judicial practice.The specific application of "factors related to the consequences of damage" overlaps with the content of Chapter 3 and is discussed in Chapter3.The forth chapter discretion of the different types of losses.According to the second classification above,this part can obtain the loss of profits and eliminate the costs that affect the restoration of reputation,and discuss how different types of losses should be determined in practice.For the determination of the loss of available benefits,two issues should be emphasized: one is whether the loss of available benefits exists,and the other is the specific determination of the loss of available benefits.The cost of eliminating the impact on the restoration of reputation is mainly reflected in the cost of investigation and evidence collection,counterattack,clarification,and reconstruction of reputation.The cost of investigation and evidence collection is already stipulated by law,and the cost of counterattack,clarification,and reconstruction of reputation generally only exists in the body of reputation that has a significant impact on its economic activities.Its discretion generally needs to refer to the actor ’s popularity,the spread of infringing speech and the degree of non-authenticity of speech.