نوع مقاله : مقاله پژوهشی
نویسنده
دانشجوی دکتری حقوق خصوصی، دانشکده حقوق و علوم سیاسی، دانشگاه علامه طباطبایی (ره)، تهران، ایران
کلیدواژهها
عنوان مقاله English
نویسنده English
The traditional approach to civil liability has primarily focused on compensating and repairing the losses suffered by the victim (compensatory damages). However, in many instances, the violation of a right not only causes loss to the right-holder but also yields significant profits for the wrongdoer—a situation that classic compensation models cannot fully address. Amidst this, disgorgement of profits arising from a violation of rights has emerged as an exceptional, non-compensatory remedy, initially in Common Law and subsequently in contemporary legal literature. Utilizing a descriptive-analytical method and a comparative approach within English and American Common Law, this research examines the possibility or impossibility of cumulating this remedy with other forms of damage payment, whether compensatory or non-compensatory. The findings indicate that, compared to compensatory damages, disgorgement of profits is fundamentally an exceptional institution; if compensatory damages suffice to protect the victim’s rights, awarding disgorgement is unnecessary. At the same time, the unrestricted cumulation of these two remedies can lead to double recovery. Therefore, the appropriate solution in this area is awarding the higher amount or deducting the compensatory damages from the realized profits. Conversely, disgorgement of profits is considered cumulatable with non-compensatory damages, particularly punitive damages, as each serves a distinct function: disgorgement aims to strip the wrongdoer of unlawful gains, while punitive damages serve a punitive and deterrent purpose. Consequently, disgorgement of profits should be applied in a manner that prevents the wrongdoer’s unjust enrichment while simultaneously avoiding both double recovery and under-compensation.
کلیدواژهها English