The Right To Request The Infringement Of Personality Right "Profit Return"

The essence of personality right is to maintain and promote human dignity andfreedom of personality, to the existence of human as the foundation, independent andindividual reflect people’s. Regulations of the traditional legislation and protectionof personality theory and the theory, lack of science and technology in modern media.Especially some personality factors are showing more and more property disposition,in the market are authorized to use or unauthorized use. How to solve the problem ofdelay of legal norms, the German courts developed the "monism" personality rightincluding mental composition and property of composition, the United States ofAmerica through the efforts of scholars to construct specific personal property rightis right of publicity. Property damage in China "tort liability law" also distinguish theright of personality and mental damage, the behavior of the liability provisions hastimes significance.This paper is to explore the issue is, others against property component ofpersonal rights, access to huge interest, the right to request the infringer to exercise.The article is divided into five parts:The first part, proposed the question. By introducing the right of personalitychange history, the emergence of two on the protection of the right of personalityproperty interests of the model, all two sure this law need protection, but thestructure and meaning is not the same. Why should benefit from the infringement ofpersonality rights back problems, mainly due to "inspire the judicial practice of tortliability law" article twentieth and foreign countries or regions.The second part, the core definition of this paper. Status in China’s judicialprotection of property interests of right of personality is introduced, to clarify thetheoretical argument, the German "monism" is preferable. More than actual damageor objective value benefit how appellation, scholars of public opinions are divergent.,through the brief introduction and criticism,"the concept of more desirable benefitreturn". The third part, review the existing legislation and the general right of claim inthe. Basis for claim infringement of personality right of property interests, the firstreview of the right of claim for compensation, and the right of claim of unjustenrichment, the right to request the return of the illegal management and. The threeclaims in solving the problems mentioned above, are difficult to do.The fourth part, the independence argument "benefit the return of" right ofclaim. Based on the thinking of "tort liability law" Twentieth article on the nature,the author believes that its essence is a kind of calculation method of infringement,and the existence of loopholes. The above claim review,"profit return" request rightis actually an independent claim, has its application space, a wide range of specialfunction and significance. At the same time comparison method, it put forward thebeneficial reference.The fifth part, the concrete thinking elements. Thinking on the elements of theclaim, including the infringement of personality right infringement behavior, profit,and profit of tort causality between, without compromising the premise, not limitedto intentional fault, as long as have the clear negligence can be.The sixth part, the relationship between liability limits and with the traditionalright of claim. Elements when the claim is possessed, the infringer shall be returnedto the profit. But the return of the scope needs to be limited; the necessary expensesshall be deducted. This claim as an independent system should be in differentsituations, to maintain a good relationship with the traditional right of claim.The seventh part, conclusion. Comprehensive analysis of the above, the basis ofright of claim against the personality rights of others "profit return" has a veryunique advantage. But the need to further explore the standard calculation of benefit,damage and benefit relations and other issues.