1. Compensation for infringement damage

(1) Compensation for property damage

1. Definition of compensation for property damage

Compensation for property damage refers to the liability for damages that the infringer should bear to the infringed party if it infringes on the civil rights and interests of others and causes property losses. Compensation for property damage may be caused by infringement of property rights and interests, such as compensation for the value of computers caused by smashing other people's computers, or compensation for medical expenses caused by infringement of personal rights and interests, such as injury to others.

2. Classification of property damage compensation

According to the types of infringed civil rights and interests, property damage compensation can be further divided into: property damage compensation for personal rights and interests such as life rights, body rights and health rights (property damage compensation for personal injury and death); Compensation for property damage that infringes upon personal rights and interests such as reputation, honor, name, portrait and privacy (compensation for property damage that infringes upon other personal rights and interests); Compensation for property damage caused by infringement of property.

3. Personal injury and death may cause compensation for mental damage as well as property damage. With regard to the compensation for property damage caused by personal injury or death, combined with the provisions of Articles 2 and 16 of the Tort Liability Law, it can be known that if the personal rights and interests of others are infringed and property losses are caused, the compensation shall be made according to the losses suffered by the infringed party. Further, if personal injury is caused by infringement on others, reasonable expenses for treatment and rehabilitation, such as medical expenses, nursing expenses and transportation expenses, and income reduced due to missed work shall be compensated. If it causes disability, it shall also compensate the living AIDS for the disabled and the disability compensation. If death is caused, funeral expenses and death compensation shall also be paid. Property damage compensation for personal injury and death generally includes positive general property loss and loss of available benefits. The former includes the above-mentioned medical expenses, nursing expenses, transportation expenses and other reasonable expenses for treatment and rehabilitation, as well as the expenses for assistive devices and funeral expenses for the disabled, while the latter includes income reduced due to missed work, disability compensation and death compensation. It should also be noted that if the infringement causes the death of the infringed person, the subject of property damage compensation for personal injury or death will be people other than the infringed person, including the close relatives of the infringed person and those who have paid reasonable expenses such as medical expenses and funeral expenses for the infringed person according to Article 18 of the Tort Liability Law. At the same time, if many people are killed because of the same tort, such as traffic accidents, mine accidents and other serious personal casualty accidents, according to the provisions of Article 17 of the Tort Liability Law, the death compensation can be determined in the same amount.

4. Infringement of personal rights and interests that can be commercialized, such as the right of reputation, honor, name, portrait and privacy, may result in property losses of the infringed. For example, an enterprise uses the portrait of a star on its commodity packaging without the permission of the star. According to the provisions of Article 2 of the Tort Liability Law, if property losses are caused by infringing on the personal rights and interests of others, compensation shall be made according to the losses suffered by the infringed party; It is difficult to determine the loss of the infringer, and if the infringer gains benefits from it, he shall be compensated according to the benefits he has gained. For example, an enterprise uses the portrait of a star on the packaging of its goods without the permission of the star, thus saving an endorsement fee that should have been paid, which can be regarded as the benefit obtained by the enterprise due to infringement; It is difficult to determine the benefits obtained by the infringer, and if the infringer and the infringer fail to reach an agreement on the amount of compensation, and bring a lawsuit to the people's court, the people's court shall determine the amount of compensation according to the actual situation.

5. As for the compensation for property damage that infringes on property, according to Article 19 of the Tort Liability Law, if another person's property is infringed, the property loss shall be calculated according to the market price at the time of the loss or other means. The property damage of the infringed includes direct damage (direct damage to property) and indirect damage (damage to due interests). Among them, the direct damage includes the reduction of positive property, such as the technical devaluation and transactional devaluation caused by the damage or loss of goods, and the increase of negative property, such as the transportation expenses incurred by Party A's damage to Party B's computer and Party B's sending it for maintenance; The indirect damage is not the reduction of the existing property, but the reduction of the possible interests of the infringed based on the property. For example, after a taxi was damaged, the driver of the taxi could not carry passengers to make money during the maintenance period.

(II) Compensation for mental damage

1. Compensation for mental damage means that if serious mental damage is caused by infringing on the personal rights and interests of others, the infringer shall pay the infringed person the mental damage consolation money. According to the provisions of Article 22 of the Tort Liability Law, 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. "Others" here only includes natural persons, but does not include legal persons or other organizations.

2. According to Article 1-4 of Interpretation of Compensation for Mental Damage, the scope of compensation for mental damage is:

① Infringement of the right to life, health, body, name, portrait, reputation, honor, personal dignity and personal freedom;

② it violates the interests of the public, social morality infringes on others' privacy or other personality interests;

③ Illegally releasing the ward from guardianship, resulting in serious damage to the parent-child relationship or the kinship between close relatives;

④ after the death of a natural person, the infringer infringes on the name, portrait, reputation and honor of the deceased by insulting, slandering, derogating, vilifying or otherwise violating the interests and social morality of the public, and the infringer illegally discloses or uses the privacy of the deceased, or infringes on the privacy of the deceased by other means violating the interests and social morality, and the infringer illegally uses, damages the remains and remains.

⑤ Specific commemorative items with symbolic meaning of personality are permanently lost or damaged due to infringement.

3. The amount of compensation for mental damage shall be determined after comprehensive consideration according to the specific circumstances such as the degree of the infringer's fault, the means, occasion and behavior of the infringement, the consequences caused by the infringement, the infringer's profit, the infringer's economic ability to bear the responsibility, and the average living standard of the place where the court is sued.

(III) Payment of compensation expenses

According to Article 25 of the Tort Liability Law, after the damage occurs, the parties may negotiate the payment method of compensation expenses. If the consultation fails, the compensation fee shall be paid in one lump sum; If it is really difficult to pay in one lump sum, it can be paid by installments, but corresponding guarantees should be provided.