Research On The Responsibility Of Profit - Type Tort

The merchandising of the right of personality has broken the traditional understanding that the right of personality only contains the moral rights, and make the right subject can gain property interest by fair use of the relevant personal right.For the same purpose, some people will infringe others’ legal rights. The traditional tort law just gives the victims the right of action for the recovery of damages to safeguard their legal rights, and not put the plot that infringer make a profit from his tort as an independent evaluation basis. This model brings a negative result that can let the infringer will still keep some interests after compensating for the victims damages, and this will go against to the motto that nobody can get interests from his unlawful act. Finally the sanction function and prevention function of the tort law will not be played. So a new legal responsibility investigation system which focus on the interests of infringers has been used into the tort law to give a negative evaluation to the interests. The 20 term of the <Tort Liability Law of the People’s Republic of China> has stipulated the responsibility investigation model of the property damages caused by infringing personal rights. It specially endows victims the right, which is named in this article as the right to claim restitution for the tort of personal right, that they can claim compensation according to the interests of the infringer. There are some controversies about the relevant theory problems of this claim right in the academic world, and the main controversy is about the independence of the right. By compare to the right of claim on unjust enrichment, negotiorum gestio, punitive compensation and the right of claim compensation on the damages, we can reach to the conclusion that the right to claim restitution for the tort of personal right has an independent position. This article also do some studies on the practical problem about the right. For instance, we distribute the burden of proof between the two parties according to the constitutive requirements of liability, and also give some improvement suggestions to the court after introducing the main measures the court take to deal with the liability of enrichment tort to personal right and the problems in this process. Scholars generally think the 20 term exists some flaws. This article criticizes and gives the advises to some flaws like the applying order between the right of action for the recovery of damages and the right to claim restitution for the tort of personal right, the range of application is confined to personal tort, and the provision of the court discretionary power is too broad. Finally, this article think that the right to claim restitution for the tort of personal right should be saw as anindependent right of claim for it has the particular theory basis and norm basis. At the same time, we still need deal with relationships between the right and the others right of claim successfully to let them perform their roles. The burden of proof should obey the principle that “who claim, who quote”. We need enlarge the 20 term’s range of application to all civil rights and interests, give victims the right to choose the right of claim with freedom, and set specific operational guidelines on the court discretionary power.