| 词条 | Account of profits |
| 释义 |
An account of profits (sometimes referred to as an accounting for profits or simply an accounting) is a type of equitable remedy most commonly used in cases of breach of fiduciary duty.[1] It is an action taken against a defendant to recover the profits taken as a result of the breach of duty, in order to prevent unjust enrichment. In conducting an account of profits, the plaintiff is treated as if they were conducting the business of the defendant, and made those profits which were attributable to the defendant's wrongful actions. This can be rather complex in practice, because the defendant's accounting records must be examined (sometimes by a forensic accountant) to determine what portion of his gross profits were derived to the wrongful act in question.[2] As a result, mathematical exactness is not called for and reasonable approximation is acceptable.[3] Historically an account was not an equitable remedy, but was an action at common law, and is therefore technically an instrument of law, though it arose at a time before the distinction between law and equity was marked.[4] Co-owners in concurrent estates also have the right to an accounting of profits, in order to properly apportion income from the use or leasing of the property. The remedy is also available against strangers to a trust who "dishonestly assist" an express trustee in a breach of the trustee’s fiduciary duty.[5] Case law has shown roughly two approaches to assessing the extent of an account of profits:[6]
See also
References1. ^{{cite book |editor1-last= Garner|editor1-first= Bryan A.| editor1-link= Bryan A. Garner|year= 1999|title= Black's Law Dictionary|url= |edition= 7th|publisher= West Group |isbn= 0-314-22864-0}} {{DEFAULTSORT:Account Of Profits}}{{law-term-stub}}2. ^{{cite web |author= Leigh Ellis|date= 6 December 2006|title= Theory into Action: Calculating Damages Payments and Accounts of Profits in Patent Cases|url= http://www.mondaq.com/article.asp?articleid=44776|publisher= Gillhams Solicitors }} 3. ^{{cite AustLII|HCA|18|1995|litigants=Warman International Limited v Dwyer |parallelcite=(1995) 182 CLR 544 |pinpoint=[25] |courtname=auto}}. 4. ^{{cite CanLII|litigants=National Trust Co. v. H & R Block Canada Inc.|link=|year=2003|court=scc|num=66|pinpoint=|parallelcite=[2003] 3 SCR 160|date=2003-11-14}} 5. ^{{cite web|author1 = Robert Hunter|author2 = Tom Wood|title = Court of Appeal confirms account of profits available as remedy for dishonest assistance|url = http://hsfnotes.com/litigation/2014/07/17/court-of-appeal-confirms-account-of-profits-available-as-remedy-for-dishonest-assistance/|publisher = Herbert Smith Freehills|date = 17 July 2014}}, discussing {{cite BAILII|litigants=Novoship (UK) Limited & Ors v Nikitin & Ors|link=|court=EWCA|division=Civ|year=2014|num=908|date=4 July 2014}} 6. ^{{cite AustLII|HCA|64|1984|litigants=Hospital Products Ltd v United States Surgical Corporation |pinpoint=[101] |parallelcite=(1984) 156 CLR 41 |date=25 October 1984 |courtname=auto}}. 2 : Judicial remedies|Equity (law) |
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