加害人因侵权而获益赔偿问题研究
发布时间：2018-10-26 13:55
【摘要】：侵权获益赔偿是作为一种新型的利益平衡方式,其要旨并不仅仅是填补受害入之损失或者单纯地惩罚行为人之侵权行为。其目的是为了建立和完善符合社会或他人之利益平衡及侵权法功能之完备。但是长期以来随着部分人身权商品化之加速,使得侵权人实施加害行为后获得巨大利益,在法律体系中将其作为损害赔偿的计算方式或者补充方式。在实践中由于对这一问题的界定不清,使得在请求获益赔偿时九成的案件都是因获益事实确定之不清使得加害入保有其利益得不到有效的规制。因此对侵权获益赔偿之研究具备理论和实践意义。 侵权获益赔偿之情形,在我国知识产权法中有着浓厚的体现,在侵权人因侵权获益之情形,损害赔偿之适用使得侵权仅仅变成一种支付,不能有效威慑及吓阻侵权人及第三人。不当得利之适用囿于时效及构成要件之困境。而将获益赔偿作为独立的请求之类型,因其具备损害赔偿之归责及不当得利之效果,使得二者融合成之间的过渡地带,从其构成要件来分析具备其自身之独立性与特殊性。 从制度间的构造来看,其区别于不当得利及不法无因管理。不当得利中权益侵害型不当得利在利益之返还效果有着与侵权获益赔偿大相径庭之效果,但是不当得利其并不以过错及违法性作为其构成要件,那么在侵权情形下适用不当得利之规定困于其理论基础。而不法无因管理之情形也是类推使用不当得利之效果,只是在扣减相应费用时作为侵权获益赔偿之参考,并不能体现获益之基础。因此,将侵权获益赔偿作为独立请求权具有现实意义。 从我国现有法律体系中探究侵权获益赔偿之情形,《侵权责任法》第20条对其适用范围及适用的规则并不能实现侵权获益赔偿之功能,另外在举证责任承担方面也是存在一定瑕疵,较权利人而言侵权人之获益使其处于有利地位,因此举证责任之倒置更能对其获益之剥夺及相关费用之扣减发挥效率之功能。另外在实践中,即便存在获益但是从现行制度看,对获益事实之认定及数额之确定也是完全依照损害赔偿之规则,并不能完全体现侵权获益赔偿之内涵。因此,对该项制度的完善及突破使得其在法益保护于行为自由的博弈要素中占据自己一定的地位并发挥作用。
[Abstract]:As a new way of balancing interests, compensation for tort benefits is not only to compensate for the loss of the victims or simply punish the torts of the perpetrators. Its purpose is to establish and perfect the balance of interests of society or others and the perfection of the function of tort law. However, along with the acceleration of commercialization of some personal rights for a long time, the infringer has obtained great benefits after carrying out the injurious act, which is regarded as the method of calculating or supplementing the compensation for damages in the legal system. In practice, because of the unclear definition of this problem, 90% of the cases in the claim for benefit compensation are due to the benefit facts are not clear, so that the benefit of the insurance can not be effectively regulated. Therefore, the study of tort compensation has theoretical and practical significance. The situation of compensation for infringement gains is strongly reflected in the intellectual property law of our country. In the case where the infringer benefits from the infringement, the application of damages makes the infringement only become a kind of payment, which can not effectively deter and deter the infringer and the third party. The application of improper enrichment is limited to the dilemma of limitation and constitutive elements. As the type of independent request, the benefit compensation has the effect of imputation of damages and improper enrichment, which makes them merge into the transition zone between them, and analyze their own independence and particularity from its constituent elements. From the structure of the system, it is different from improper enrichment and illegal management. In the improper enrichment, the effect of the unjust enrichment is different from the compensation for the infringement, but the improper enrichment does not take fault and illegality as its constituent elements. So the application of unjust enrichment in the case of tort is limited to its theoretical basis. The situation of illegal management without cause is also the result of analogizing improper enrichment. It is only used as the reference of tort benefit compensation when deducting the corresponding expenses, and it can not reflect the basis of benefit. Therefore, it is of practical significance to regard tort compensation as an independent right of claim. The article 20 of the Tort liability Law can not realize the function of compensation for the benefit of infringement by probing into the situation of compensation for tort benefit from the existing legal system of our country, the scope of application and the applicable rules of Article 20 of the Tort liability Law. In addition, there are some defects in the burden of proof, which is better than the benefit of the infringer, so the inversion of the burden of proof can play an efficient role in the deprivation of their benefits and the deduction of related expenses. In addition, in practice, even if there is benefit but from the current system, the determination of the fact of benefit and the determination of the amount is also completely in accordance with the rules of compensation for damages, can not fully reflect the connotation of tort compensation. Therefore, the perfection and breakthrough of this system make it occupy its own position and play a role in the game element of legal interests protecting the freedom of behavior.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923
本文编号：2295932
[Abstract]:As a new way of balancing interests, compensation for tort benefits is not only to compensate for the loss of the victims or simply punish the torts of the perpetrators. Its purpose is to establish and perfect the balance of interests of society or others and the perfection of the function of tort law. However, along with the acceleration of commercialization of some personal rights for a long time, the infringer has obtained great benefits after carrying out the injurious act, which is regarded as the method of calculating or supplementing the compensation for damages in the legal system. In practice, because of the unclear definition of this problem, 90% of the cases in the claim for benefit compensation are due to the benefit facts are not clear, so that the benefit of the insurance can not be effectively regulated. Therefore, the study of tort compensation has theoretical and practical significance. The situation of compensation for infringement gains is strongly reflected in the intellectual property law of our country. In the case where the infringer benefits from the infringement, the application of damages makes the infringement only become a kind of payment, which can not effectively deter and deter the infringer and the third party. The application of improper enrichment is limited to the dilemma of limitation and constitutive elements. As the type of independent request, the benefit compensation has the effect of imputation of damages and improper enrichment, which makes them merge into the transition zone between them, and analyze their own independence and particularity from its constituent elements. From the structure of the system, it is different from improper enrichment and illegal management. In the improper enrichment, the effect of the unjust enrichment is different from the compensation for the infringement, but the improper enrichment does not take fault and illegality as its constituent elements. So the application of unjust enrichment in the case of tort is limited to its theoretical basis. The situation of illegal management without cause is also the result of analogizing improper enrichment. It is only used as the reference of tort benefit compensation when deducting the corresponding expenses, and it can not reflect the basis of benefit. Therefore, it is of practical significance to regard tort compensation as an independent right of claim. The article 20 of the Tort liability Law can not realize the function of compensation for the benefit of infringement by probing into the situation of compensation for tort benefit from the existing legal system of our country, the scope of application and the applicable rules of Article 20 of the Tort liability Law. In addition, there are some defects in the burden of proof, which is better than the benefit of the infringer, so the inversion of the burden of proof can play an efficient role in the deprivation of their benefits and the deduction of related expenses. In addition, in practice, even if there is benefit but from the current system, the determination of the fact of benefit and the determination of the amount is also completely in accordance with the rules of compensation for damages, can not fully reflect the connotation of tort compensation. Therefore, the perfection and breakthrough of this system make it occupy its own position and play a role in the game element of legal interests protecting the freedom of behavior.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923
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