“ 獲益剝奪” 規範意義的再審視－－以《民法典》第1182 條前半段規定為分析物件

Re-examination of the Normative Meaning of“Deprivation of Benefits”: Take the first half of Article 1182 of the Civil Code as the object of analysis

明確《民法典》第1182條“按照侵權人因此獲得的利益賠償”的規範意義，為其適用的前提。因被侵權人財產損失與侵權人獲益並不處於全然對應關係且存在本質差異，故將“按照侵權人因此獲得的利益賠償”解讀為財產損失賠償標準並不具有說服力。在我國侵權責任制度範疇內，獲益剝奪中的獲益應指向積極獲益且應為被侵權人所保有。預防功能的有效實現，為將侵權人獲益歸屬于被侵權人提供了重要的理論依據。同時，獲益剝奪雖被我國侵權責任制度中的損害賠償所涵蓋，但其與填補性賠償存在本質區別。在規範意義上，“按照侵權人因此獲得的利益賠償”不僅體現為一種損害賠償責任，也隱含著立法者將獲益剝奪確認為一種新的民事責任承擔方式的認知。

Clearing the normative meaning of ' damages based on the interests gained by the tortfeasor' in Article 1182 of the Civil Code is the premise of its application. Because the loss of the infringed and the benefit of the tortfeasor are not in full correspondence and there are essential differences between them, it is not convincing to interpret 'Damages based on the interests gained by the tortfeasor' as the standard of compensation for property losses. Although depriving the benefit of the tortfeasor is covered by damages in our tort liability system, it is essentially different from the compensatory damages. In the normative sense, 'damages based on the interests gained by the tortfeasor' not only embodies as a liabilith for damages, but also implies that the legislator recognizes disgorgement damages as an new form of civil liability. The benefits in disgorgement damages should point to positive benefits and should be retained by the infringed. The effective realization of the prevention function provides an important theoretical basis for giving the benefits to the infringed.