Interpretation of the System of Deprivation of Tortious Benefits under Article 1182 of the Civil Code

Abstract

On the basis of summarizing the Tort Liability Law and practical experience, Article 1182 of the Civil Code adjusts the application order of the system of deprivation of tortious benefits, which is conducive to further depriving tortious benefits to deter tortious acts and provide more adequate protection for victims. However, its scope of application, methods and standards for calculating benefits, and standards for court discretion need to be further clarified. It can be considered to limit the scope of application of profit deprivation to commercializable spiritual personality rights and interests, and identity rights and interests involving the illegal separation of guardians from their wards. When identifying profits, it should be clarified that they can be either an increase in property due to the tort or expenses saved due to the tort. Profits refer to the net profit obtained from the tort and must have a causal relationship with the tortious act. Calculation standards can be divided into comparative standards and constructive license fees or similar market standards according to the type of profit. When exercising discretion, the court should give priority to the tortious benefits, then make a final judgment by comprehensively considering other factors, and clarify the residual status of the court's discretion.