Disgorgement of Profits in Croatian Law

Abstract

The general legal basis for disgorgement of profits for infringements of law under Croatian law is lacking. This is especially true for the areas of contract law and tort. The Croatian Code of Obligations provides no provision for disgorgement of profits, nor are there many academic debates on the topic. The function of restitution could be partially fulfilled by some other legal remedies as discussed in the text, such as claims based on unjust enrichment, benevolent intervention in another’s affairs, or claims for damages. However, none of them fully meets the requirements of disgorgement. Some traces of disgorgement of profits could also be found in other areas of Croatian private law with a substantial level of diversity. For instance, in the area of criminal and administrative law, intellectual property rights law, capital market law, unfair competition and unfair commercial practices such traces are more evident. These areas have reacted by developing specific sui generis legal remedies that under certain conditions, might allow skimming off, seizure, transfer or confiscation of unlawful gain. Again, none of them fully meets the requirements of disgorgement of profits. This paper first analyses terminology and conceptual problems of disgorgement of profits under Croatian law, than possible functional equivalents to disgorgement and finally other private law sui generis remedies. In conclusion, the paper offers answers to the question of whether there are any potential underlying reasons to introduce disgorgement remedies into Croatian law, and suggests de lege ferenda proposals.