Protipravno pridobljeni dobiček kot merilo odškodninskega in obogatitvenega zahtevka

slovenian

2015

volume 41, issue 3/4

IUS SOFTWARE d.o.o.
(Obvezni izvod spletne publikacije)

The article explores possibilities for disgorgement of wrongfully gained profits in private law and gives a short overview and comparison with seizure of profits in public law. Tort law primarily deals with reparation of loss of the wronged party and not with disgorgement of profit (remaining after the payment of damages) from the tortfeasor. A damages claim could encompass such profit if the amount of damages would exceed the (objectively assessed) loss. This would not be punitive damages. Possibilities for disgorgement exist under special tort law provisions for breach of intellectual property and competition law. A recent Slovenian Supreme Court judgement indicates new trends: in case of abuse of dominant position lost profit of the wronged party was established by reference to the profit gained by the perpetrator. Better possibilities for disgorgement of profits exist in the law of unjustified enrichment. With a restitution claim the profit can be transferred from the tortfeasor to the wronged party in the amount exceeding its deprivation. Private law should not give incentive for infringements of rights. Private enforcement of the principle that nobody should be allowed to profit from his own wrong is more effective than public enforcement.

19.01.2017