Disgorgement damages and punitive damages a proposal to reform the Portuguese Civil Code

Abstract

Over time we have come to see that Roman-Germanic legal systems lack an adequate and effective response for recovering illegal gains. In several instruments, in particular of European Law, the duty to indemnify is designed as a remedy that transfers the profit to the injured party. We have had the opportunity to argue that compensation is, indeed, the natural place for
restoring illegal gains, but, in any case, the emergence of new legislative solutions makes such a response clear. Equally, the sphere of civil law itself requires that administrative sanctions be restricted, and this public law intervention is excluded when the harmed goods are exclusively or predominantly individual in character. In such cases, the application, instead, of a private
penalty will be justified, restoring the dignity of the
subjective right breached. This framework requires a reform of the Portuguese Civil Code, which is what is being proposed here.