I. Compensation for Tort Damage

(1) Property damage compensation

1, the definition of property damage compensation

Compensation for property damage refers to the responsibility that the infringer should bear to the infringed person for infringing on the civil rights and interests of others and causing property losses. Property damage compensation can be caused by infringement of property rights and interests, such as computer value compensation caused by smashing other people's computers, or medical expenses compensation caused by infringement of personal rights and interests, such as hurting others.

2, the 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, body and health (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 lead to mental damages and property losses. With regard to property damage compensation for personal injury or death, combined with the provisions of Article 20 and Article 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, compensation shall be made according to the losses suffered by the infringed person. 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 disabled for living AIDS and 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 assistive devices and funeral expenses for the disabled, while the latter includes income, disability compensation, death compensation and so on. It should also be noted that if the infringement causes the death of the infringed person, the main body of compensation for personal injury and property damage will be people other than the infringed person, including close relatives of the infringed person and those who pay 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 due to the same tort, such as traffic accidents, mine accidents and other major personal injuries and deaths, 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 cause 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 20 of the Tort Liability Law, if property losses are caused by infringing upon the personal rights and interests of others, compensation shall be made according to the losses suffered by the infringed; The loss of the infringer is difficult to determine, and if the infringer gains benefits from it, he shall compensate according to the benefits he has obtained. For example, enterprises use celebrity portraits on the packaging of their goods without the permission of celebrities, thus saving the endorsement fees that should have been paid, which can be regarded as the benefits obtained by enterprises due to infringement; It is difficult to determine the benefits obtained by the infringer, and if the infringer and the infringed party 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. With regard to the compensation for property losses caused by infringement of property, according to Article 19 of the Tort Liability Law, if the property of others is infringed, the property losses shall be calculated according to the market price at the time of the loss or by 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 losses include the decrease of positive attributes, such as the technical depreciation and transactional depreciation caused by the damage or loss of goods, and the increase of negative attributes, such as the transportation expenses caused by Party A's damage to Party B's computer and Party B's sending it for maintenance; Indirect damage is not the reduction of existing property, but the reduction of the benefits that the infringed person may obtain based on the property. For example, after the taxi is damaged, the taxi driver cannot carry passengers to make money during the maintenance period.

(2) Compensation for mental damage

1, compensation for mental damage, refers to the infringement of the personal rights and interests of others, causing serious mental damage, and the infringer shall pay compensation for mental damage to the infringed. 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, excluding legal persons or other organizations.

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

(1) Violating the right to life, health, body, name, portrait, reputation, honor, personal dignity and personal freedom;

(2) Infringe on public interests, social morality, privacy of others or other personal interests;

(3) Illegally releasing the guardianship of the ward, thus causing serious damage to the parent-child relationship or the kinship between close relatives;

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

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 of the specific circumstances such as the degree of the infringer's fault, the means, occasions and behaviors of infringement, the consequences caused by infringement, the infringer's profit, the infringer's economic ability to bear responsibility, and the average living standard at the seat of the court.

(3) 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 the compensation fee. If negotiation 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 in installments, but the corresponding guarantee shall be provided.