論人格權財産利益的法律保護──以《侵權責任法》第20條爲中心

The Legal Protection of Economic Interests in Personality Right: Centered on the Interpretation of Article 20 of Tort Liability Law

人格權財産利益的救濟面臨理論、實踐及道德三重困境。《侵權責任法》第20條采一元論的規範模式，綜合補償、預防雙重立法目的，確立了實際損失、侵權獲益以及酌定賠償等多元化的賠償數額計算方式。該條規定適用于侵害非物質性人格權益造成財産損失的情形，且以侵犯可商業化利用的人格標識爲典型。侵權獲益賠償的理論基礎在于不法管理，權利人需提供侵權人總收益額的初步證據，由侵權人證明與侵權無關的收益以及可以扣除的成本或費用。酌定賠償標準不同于精神損害賠償的自由裁量，建議以人格權益客觀價值爲基准，結合具體個案情形酌定賠償數額。被侵權人應當有杈選擇最有利于損害救濟的賠償標準。 The relief of the economic interests in personality right faces the triad of difficulties: theory, practice and morality. Based on dual legislative purpose of compensation and prevention, Article 20 of Tort Liability Law, which adopted the normative model of Monism in German, establishes comprehensive measures of dam­ages including actual losses, disgorgement of profits and discretionary compensation. The provisions mainly apply to property losses by infringement of non-material personality interests, especially personality identifi­cation that can be commercially exploited. The rule of disgorgement of profits lies in the theory of quasi spon­taneous agency. The infringed should provide the preliminary evidence of the total amount of the infringer’s income, and it is the infringer's burden to prove any proportion of its total incomes, which were not due to the use of the infringing personality identification, and the allowability of deductible costs. The discretionary compensation, which differs from discretion of mental damages, can be measured in specific case with the marketplace value as the baseline. The infringer should have the right to choose the way to calculate the dam­age which is the most beneficial to the relief of rights.

The relief of the economic interests in personality right faces the triad of difficulties: theory, practice and morality. Based on dual legislative purpose of compensation and prevention, Article 20 of Tort Liability Law, which adopted the normative model of Monism in German, establishes comprehensive measures of dam­ages including actual losses, disgorgement of profits and discretionary compensation. The provisions mainly apply to property losses by infringement of non-material personality interests, especially personality identifi­cation that can be commercially exploited. The rule of disgorgement of profits lies in the theory of quasi spon­taneous agency. The infringed should provide the preliminary evidence of the total amount of the infringer’s income, and it is the infringer's burden to prove any proportion of its total incomes, which were not due to the use of the infringing personality identification, and the allowability of deductible costs. The discretionary compensation, which differs from discretion of mental damages, can be measured in specific case with the marketplace value as the baseline. The infringer should have the right to choose the way to calculate the dam­age which is the most beneficial to the relief of rights.