The Study on Theoretical Legitimacy of Disgorgement in Breach of Contract
The remedy of disgorgement takes profits obtained by contracting parties based on the breach of contract as the compensation basis for the non-breaching party,breaking through the traditional concept of damage based on the actual losses of the non-breaching party.The disgorgement cannot be absorbed by the concepts of expectation interest,reliance interest and restitution interest etc.and the unjust enrichment system is excluded due to the different theoretical basis and constituent elements.The theory of damages cannot accommodate the disgorgement,and the theory of disgorgement in breach of contract has independent value because of the non-shared property of rights and interests and the externality of contract.From an empirical perspective,the remedy of disgorgement is a substitute for damages in breach of contract,and the specific application should focus on identifying the subjective state and objective profit-making results of the defaulting party.
NETL
NSTL
万方数据
维普
