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某些人身权包含财产价值,对这些人身权侵权适用获益赔偿具有正当性,能有效实现侵权责任法行为威慑的功能和权利保护的目标。人格权侵权获益赔偿的要件包括加害行为及其不法性、加害人获益、加害行为与获得利益有因果关系、行为人恶意、获益超过损害。获益的计算可以是净利润也可以是毛利润,既包括实际获益也包括拟制获益。获益赔偿适用于所有包含财产价值的人身权并延及相关法益,并是补充性的救济方式。我国《侵权责任法草案(三审稿)》关于人身权侵权获益赔偿的规定在总体上值得肯定,但在诸多方面有待改进和完善。
Some personal rights include the value of property, the right to apply for compensation for these personal rights infringement is justified, and can effectively achieve the function of tort law and the goal of the protection of rights. The elements of compensation for the right infringement of personality include the act of injuring and its illegality, the benefit of the perpetrator, the causal relationship between the injurious act and the gain of interests, the malicious conduct of the perpetrator and the gain over the damage. Benefit can be calculated either as a net profit or a gross profit, both as a real benefit and as a fictional benefit. Benefit compensation applies to all personal rights that include the value of the property and extends to the relevant legal benefits and is a complementary remedy. China’s “Tort Liability Law Draft (Third Review Draft)” on the personal rights infringement benefit compensation provisions in general is worthy of recognition, but in many aspects need to be improved and perfected.