“獲益剝奪”適用條件的解釋論建構

The Construction of Interpretation Theory on the Applicable Conditions of ''Disgorgement Damages''

《民法典》第1182條對《侵權責任法》第20條的修改，不僅使獲益剝奪的適用不再以被侵權人受到的損失難以確定為前提，也使獲益剝奪徹底成為一種與損害填補和賠償損失相區分的侵權責任類型和責任承擔方式。因不同類型的責任往往對應於不同的適用條件，且第1182條中並未對獲益剝奪的適用條件予以全面和清晰的表述，故應對獲益剝奪的適用條件予以重新闡釋。基於侵權責任制度法理及法效果的獨特性，應將人身權益受侵害、侵權人獲益及因果關係確定為獲益剝奪適用的三項必備條件，而被侵權人受到損失不為其適用前提。基於獲益剝奪制度的剝奪及預防功能，應將侵害行為的違法性作為基礎性歸責事由；同時，為充分發揮預防功能，應使侵權人之過錯程度與可剝奪之獲益範圍處於正向對應關係，以實現適用條件與責任範圍的動態匹配。

The amendment of Article 1182 of the Civil Code to Article 20 of the Tort Liability Law not only makes the application of disgorgement damages no longer based on the difficulty of determining the losses suffered by the infringed party, but also makes disgorgement damages a distinct type of tort liability and a way of assuming liability completely different from the filing of damages and compensation for loss. Due to the fact that different types of liabilities often correspond to different applicable conditions, and Article 1182 does not provide a comprehensive and clear description of the applicable conditions for disgorgement damages, the applicable conditions for deprivation of benefits should be reinterpreted. Based on the unique legal principles and effects of the tort liability system, the infringement of personal rights and interests, the benefit of the infringer, and the causal relationship should be determined as three necessary conditions for the application of disgorgement damages, while the loss suffered by the infringed person is not the prerequisite for its application. Based on the deprivation and prevention functions of the system of disgorgement damages, the unlawfulness of the infringing act should be taken as the fundamental reason for attribution of liability; At the same time, in order to fully utilize the preventive function, the degree of fault of the infringer should be in a positive correspondence with the scope of benefits that can be deprived, which in order to achieve a dynamic match between the applicable conditions and the scope of liability.