How to determine the amount of tort compensation? Where copyright or copyright-related rights are infringed, the infringer shall compensate according to the actual losses of the obligee. If the actual loss is difficult to calculate, it may be compensated according to the illegal income of the infringer. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement. If the actual loss of the obligee or the illegal income of the infringer cannot be determined, the people's court shall award compensation of less than 500,000 yuan according to the circumstances of the infringement. The amount of compensation for infringement of patent rights shall be determined according to the actual losses suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement. If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement. If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the patent license fee, the people's court may determine the compensation of more than 1 10,000 yuan and less than1100,000 yuan according to the type of patent right, the nature and circumstances of the infringement. Article 48 of the Copyright Law stipulates that if copyright or copyright-related rights are infringed, the infringer shall pay compensation according to the actual loss of the obligee; If the actual loss is difficult to calculate, it may be compensated according to the illegal income of the infringer. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement. If the actual loss of the obligee or the illegal income of the infringer cannot be determined, the people's court shall award compensation of less than 500,000 yuan according to the circumstances of the infringement. Article 65 of the Patent Law determines the amount of compensation for infringement of the patent right according to the actual losses suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement. If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement. If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the patent license fee, the people's court may determine the compensation of more than 1 10,000 yuan and less than1100,000 yuan according to the type of patent right, the nature and circumstances of the infringement. "Several Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Disputes" Article 20 The actual loss suffered by the obligee due to infringement as stipulated in Article 65 of the Patent Law can be calculated by multiplying the reduction in the total sales of patented products caused by infringement by the reasonable profit of each patented product. If it is difficult to determine the total number of sales reduced by the obligee, the product of the total number of infringing products sold in the market multiplied by the reasonable profit of each patented product can be regarded as the actual loss suffered by the obligee due to infringement. The benefits obtained by the infringer due to infringement as stipulated in Article 65 of the Patent Law can be calculated by multiplying the total number of infringing products sold in the market by the reasonable profit of each infringing product. The benefits obtained by the infringer due to infringement are generally calculated according to the operating profit of the infringer, and can be calculated according to the sales profit for the infringer who is completely engaged in infringement. Article 21 If it is difficult to determine the loss of the obligee or the interests of the infringer, and the patent license fee is used as a reference, the people's court may reasonably determine the compensation amount by referring to the multiple of the patent license fee according to the type of the patent right, the nature and circumstances of the infringement, the nature, scope and time of the patent license, etc. If there is no reference to the patent license fee or the patent license fee is obviously unreasonable, the people's court may determine the amount of compensation according to the type of patent right, the nature and circumstances of the infringement and other factors, in accordance with the provisions of the second paragraph of Article 65 of the Patent Law. Article 22 If the obligee claims that reasonable expenses have been paid to stop the infringement, the people's court may calculate the compensation amount in addition to the compensation amount determined in Article 65 of the Patent Law.
Legal subjectivity:
First, the legal provisions of tort compensation
The determination of the principle of compensation for property right infringement is centered on the balance of interests. Understanding of indirect loss and pure economic loss compensation by the principle of comprehensive compensation It is the basic principle of tort compensation to realize comprehensive compensation for property loss by the principle of filling and the degree of property loss. Comprehensive compensation (damages) includes not only the direct damage caused by infringement of other people's property, but also the possible indirect losses, that is, in addition to the positive damage, it should also compensate the property interests that should be obtained but not obtained due to infringement damage. The Civil Code provides compensation for indirect losses. As long as it is possible to obtain property when the infringement occurs, even if the loss is not the real interest, the indirect loss should be established.
Second, the Tort Liability Law stipulates compensation for mental damage.
Article 182 of the Civil Code stipulates that if the personal rights and interests of others are infringed and serious mental damage is caused to others, the infringed person may request compensation for mental damage. Tort Liability Law stipulates that compensation for mental damage is strictly limited to infringement of personal rights and interests, including infringement of life, health, reputation and privacy, excluding property rights.
This is the first time that China's law clearly stipulates compensation for mental damage, which is a great progress in legislation. However, this provision only establishes one principle. How to apply it, how to determine and calculate the way and amount of compensation for mental damage need further legislation or judicial interpretation.
The Tort Liability Law has written the compensation for mental damage into the law, which has greatly encouraged people all over the country. However, it should be noted that according to the Tort Liability Law, the infringed party must meet two basic conditions when requesting compensation for mental damage:
1. The actor must have infringed on the personal rights and interests of others, not other rights and interests. The infringer has the right to claim compensation for mental damage only when his personal rights and interests are infringed, but not for non-personal rights and interests. For example, if the actor damages a famous painting handed down by others for generations, the infringer can only ask the infringer to bear the responsibility for the loss of the famous painting. Although the infringer's behavior may objectively cause serious mental damage to the infringed, the infringer should not bear the mental damage caused by infringing on the property rights of others; Another example is that the perpetrator killed a pet living alone with a lonely old man by car, which may also cause irreparable mental trauma to the infringed person. However, according to the Tort Liability Law, the actor does not bear the serious mental damage caused by the death of the pet.
2. The behavior of the actor must cause serious mental damage to the infringed person before the legal provisions of the Tort Liability Law on compensation for mental damage can be applied. For minor mental damage, it does not belong to the category of the Civil Code.
Third, the standard of personal injury compensation stipulated in the Tort Liability Law
Article 179 of the Civil Law stipulates: "Anyone who infringes upon others and causes personal injury shall pay compensation for medical expenses, nursing expenses, transportation expenses and other reasonable expenses for treatment and rehabilitation, as well as the income reduced due to absenteeism. If it causes disability, it shall also compensate the disabled for living AIDS and disability compensation. If death is caused, funeral expenses and death compensation shall also be compensated. "
Article 180 of the Civil Code stipulates: "If multiple deaths are caused by the same tort, the same amount of death compensation can be determined."
Article 802 of this law stipulates the compensation items for personal injury or death caused by tort. However, in order to facilitate the settlement of disputes and avoid the unreasonable result of "the same life but different prices", the same amount of death compensation is often used in practice. The drafters upgraded this practical experience to a legal rule.
The above is the relevant legal content of the Legal Provisions on Tort Compensation compiled by Zhaofa. Com, including the provisions of the Tort Liability Law on compensation standards for property rights infringement, the provisions of the Tort Liability Law on compensation standards for mental damages and the provisions of the Tort Liability Law on compensation standards for personal injuries. If you encounter other questions you don't understand, please go to the French Open legal platform and the online lawyer will answer them professionally.