| 英文摘要 |
Disgorgement is a means of depriving the debtor of the profit from a wrongful act, to prevent the debtor from profiting from its misconduct, and has the effect of deterring a breach of contract The purpose of this paper in analyzing disgorgement is not to explore the mechanism to replace the current system of remedies for breach of contract, but to seek the feasibility of correcting civil misconduct through disgorgement remedy when the traditional means of achieving the principle of equity is insufficient. This article analyzes the dilemma and breakthrough in the practice of disgorgement remedy based on the development in the U.S, examines the accumulated cases in the past based on the models and requirements constructed by the US Restatement of Laws, sorts out and summarizes the applicable types of disgorgement remedy, and discusses the recent practical developments and disputes. Like most civil law countries, the general legal basis of disgorgement remedy in Taiwan is lacking. If the legislators deem it necessary to establish a uniform regulation of disgorgement for breach of contract, it seems that the interpretation and analogy of the current system such as unjust enrichment or claim of the return of reimbursement cannot fulfill the same functions and goals of disgorgement. Therefore, this article argues that if the special disgorgement claim is added by consulting the corresponding US law, it will better highlight the equitable purpose of this new contractual remedy. |
