论权益侵害与获利交出

On Rights Infringement and Surrender of Benefit

获利交出救济被认为旨在预防与阻却侵权获利行为,但就此救济的正当化基础存在诸多争议。基于权益归属理论的不当得利或不法管理路径,就处理此类问题在理论与实践上都存在诸多困境。侵权获利行为的实质是非经交易而使用或侵占他人权益;卡-梅框架为侵权法处理这一问题提供了理论指引。针对此类侵权行为的获利交出,实际上涉及两类不同的侵权救济。第一类救济为经济价值赔偿,其旨在对排他权之经济价值遭受侵害进行赔偿。此类赔偿依协商性损害赔偿认定。侵权人故意或过失均不影响此类赔偿请求权的成立及数额认定,其所获利益为算定排他权客观经济价值的考虑因素。第二类救济为利润剥夺,其旨在维护财产规则,使产权制度得以有效运作。故意非经交易之使用行为是对财产规则的否定,其对价格机制的运作、资源配置的效率、交易市场以及侵权法制度均产生诸多负面影响。侵权法经由利润剥夺救济以禁止此类行为。基于前述原理,《民法典》第1182条填补了对具有经济价值的人身权益遭受侵害时的救济不足,体现了我国法对人身权益保护的立体性与科学性。

Remedies related to surrender of benefit are aimed at preventing and inhibiting conducts calculated to result in profit. The mainstream view that this problem can be dealt with through unjust enrichment or gestio negotiorum is worth rethinking. The essence of conducts calculated to result in profit is to encroach on the entitlement of others without transaction. The aforementioned two solutions to this problem are based not on the regulation of the tortfeasor’s behavior, but on the ownership of rights. This issue should be dealt with within the framework of tort law. The Calabresi & Malamed framework provides theoretical guidance for tort law to deal with this problem. The surrender of benefit for such infringement actually involves two different kinds of tort remedy. The first kind of remedy is compensation damages for economic value, which aims to compensate for the infringement on the economic value of exclusive entitlements. The legitimacy of such compensation is based on the exclusivity of property rights. Such compensation should be calculated by negotiating damages. According to Morris-Garner v One Step(Support) Ltd, negotiating damages can be award in tort, breach of contract, or equity. When the court awards for tort, negotiating damages assessed by reference to the value of the use wrongfully made of property, measured by what a reasonable person would have paid for the right of user, are readily awarded at common law for the invasion of property rights. According to Lloyd v Google LLC, a claim in tort for misuse of private information would naturally lend itself to an award of user damages. The intention or negligence of the tortfeasor does not affect the establishment and determination of the amount of such claim for compensation, and the benefits obtained are the factor for determining the objective economic value of the exclusive right. However, if the tortfeasor only needs to compensate for the value of the infringed entitlement regardless of whether there is a transaction, then people no longer have the incentive to trade with the entitlement holders. This renders the property rules meaningless. The second kind of remedy is disgorgement damages or accounting of profit, which aims to maintain the property rules and ensure the effective operation of the property system. Intentional use without trading is a negation of property rules, which has many negative effects on the operation of price mechanism, the efficiency of resource allocation, trading market and tort law system. Tort law removes incentives for people to bypass transactions through disgorgement damages. Although disgorgement damages are less functional than punitive damages, the profits obtained by the tortfeasor can still be considered as a limiting factor in the calculation of the amount of punitive damages. Article 1182 of the Civil Code of the People’s Republic of China provides for both negotiating damages and disgorgement damages. It should be understood as applicable to situations where personal rights and interests with economic value are infringed on. The limitation on the scope of application of this article is widely supported by judicial practice.