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| 文章编号：1672-3104(2025)05-0084-13 |
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侵权获利赔偿与分配正义 |
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孙鹏，孟涛 |
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（西南政法大学民商法学院，重庆，401120） |
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| 摘 要： 《民法典》第1182条将侵权获利赔偿请求权作为一项独立的请求权，民法学理论因此面临如何认识侵权获利赔偿正当性的问题。然而，现有学说无力回应该制度面临的三重正当性困境。其实，超过受害人损失的侵权获利属于社会新增财富，只有分配正义才能确定侵权获利的归属，并将侵权获利行为的经济合理性纳入法律评价，从而实现侵权人与受害人的利益平衡。因此，侵权获利赔偿的正当性宜确定为分配正义，侵权获利赔偿实为赔偿侵权人侵占的本应分配给受害人的那一份侵权所得利益。在此基础上，应根据应得原则、功利主义原则、反资格原则、按需分配原则等具体的分配正义原则，在原告、被告之间按比例分配侵权获利。而为了实现前述分配效果，应当将侵权获利赔偿制度动态系统化，因为动态系统模式的动态品格适配分配正义的多元性、比较性和比例性。 |
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| 关键词： 侵权获利赔偿；分配正义；动态系统论；私法正义 |
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Gain-based tort damages and distributive justice |
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SUN Peng, MENG Tao |
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（School of Civil and Commercial Law, Southwest University of Political Science and Law, Chongqing 401120, China） |
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| Abstract: Article 1182 of The Civil Code regards the right to claim damages for gain-based tort as an independent right of claim, so the theory of civil law faces the problem of how to understand the legitimacy of gain-based tort damages. However, existing theories are unable to respond to the triple legitimacy dilemma faced by the system of gain-based tort damages. In fact, the gain-based tort that exceeds the loss of the victim belongs to the newly added wealth of the society, so only distributive justice can determine the ownership of gain-based tort, and bring the economic rationality of gain-based tort into legal evaluation, thus achieving a balance of interests between the infringer and the victim. Therefore, the legitimacy of gain-based tort damages should be determined as distributive justice, and the gain-based tort damage actually refers to the compensation for the gain-based tort that should have been distributed to the victim, but has been misappropriated by the infringer. On this basis, the gain-based tort should be distributed proportionally between the plaintiff and the defendant in accordance with specific principles of distributive justice such as the deserved principle, the principle of utilitarianism, the principle of disqualification, and the principle of distribution according to need. In order to achieve the aforementioned distribution effect, the system of gain-based tort damages should be systematized dynamically, as the dynamic character of the dynamic system theory adapts to the pluralism, comparison and proportionality of distributive justice. |
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Key words: gain-based tort damages; distributive justice; dynamic system theory; justice in private law |
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