인격권 침해와 그 구제방법

Infringement of Personal Rights and Legal Remedies- Focusing on the discussion of China and Taiwan

In this paper, we study a remedy for infringement of personal rights in China and Taiwan. When personal rights have been infringed by another person, the owner of that rights can be protected through filing a lawsuit. Traditionally, this relief has been discussed by the tort and unjust enrichment, but when infringement occurs, that relief is insufficient and even unjust, because the scope of recovery is said to be limited to claimant’s loss rather than infringer’s benefit even if the infringer is an unlawful and intentional and his blameworthiness is much greater than the claimant. Comparatively, this problem is solved by two ways : Germany admits recapturing infringer’s wrongful gain by compensating claimant’s loss. It has gradually been recognized by jurisprudence, especially his 3 step calculation of damages(dreifache Schadensberechnung), e.g. Paul Dahlke case(BGHZ 20, 345) etc. But Korea has not been adopted this attitude, so jurisprudence and doctrine admit its scope of recovery should be limited to claimant’s loss, not infringer’s benefit, because it fits the purpose of the of tort damages. Another way is admitting the untrue management of affairs in this case like Switzerland(Swiss Code of Obligations, art. 423). It provides as follows : Where agency activities were not carried out with the best interests of the principal in mind, he is nonetheless entitled to appropriate any resulting benefits(para.1). The principal is obliged to compensate the agent and release him from obligations assumed only to the extent the principal is enriched(para. 2). Taiwan civil code introduced this provision on his 1999’s Civil code reform, article 177, paragraph 2 : If the management of the affair does not accord with the provisions of the preceding article, the principal may still be entitled to the interests derived from the management. But the obligation specified in the first paragraph of the preceding article of the principal towards the manager shall be only to the extent of the interests he acquired(art. 177, paragraph 1). The provision of the preceding paragraph shall apply mutatis mutandis to the situation when the manager knew it was another person s affair but still managed for his own interests(art. 177, para. 2). In addition, it is recognized that it should be solved by the unjust enrichment. According to this view, in case of intentional infringer who has profited from commercial exploitation of another person’s personal rights, more proper measurement for infringer’s benefit should not be limited to fair market value of claimant’s personal rights, but should include the profits which infringer has gained and which are attributable to the unauthorized use of the claimant’s personal rights. So the standard for measurement of infringer’s benefit in case of infringement of personal rights should be reconsidered. But Korea has not also been adopted this, jurisprudence and doctrine limit its scope of recovery of benefits to claimant’s loss, not infringer’s benefit. However, this provision is not prescribed for all cases of infringement of personal rights, especially not for infringement by unlawful commercial use. Therefore the scholars have been trying by introducing the example of Germany or Switzerland. In this case, the Tort Act of the People’s Republic of China(2009) provides in the article 20, where any harm caused by a tort to a personal right or interest of another person gives rise to any loss to the property of the victim of the tort, the tortfeasor shall make compensation as per the loss sustained by the victim as the result of the tort. If the loss sustained by the victim is hard to be determined and the tortfeasor obtains any benefit from the tort, the tortfeasor shall make compensation as per the benefit obtained by it