The Research On Disgorging Or Stripping The Gain In Tort Law

Disgorge or strip the gain is a new way of interests balance, the point of disgorging or stripping the gain is not to fill up the loss or simply punish infringer’s behavior. It aim at building up and consummating the function of infringement law or conform to society and peoples’interests balance. As some exclusive rights commercialized quickly, infringer may gain enormous interests due to his infringement act, disgorge or strip the gain is a way of calculation or supplement in traditional damage system. The define of disgorging or stripping the gain is not clear in practice, it makes ninety percent of case can’t get effective regulation due to the unclear fact of gain, as a result, inflictor keeps on retaining the gain. So the research on disgorging or stripping the gain has theoretical and practical significance.Disgorge or strip the gain have grumous reflect on Intellectual Property law in China, under this circumstances, infringement merely becomes a kind of payment in Damages, it can’t deter infringer and the third party effectively. The application of unjust enrichment may bring about prescription and Constitutive requirements, however, as an independent claim, disgorge or strip the gain have the rules of Damages and the result of Unjust Enrichment, it becomes a Transition Zone from Damages to Unjust enrichment, from his constitutive requirements, disgorge or strip the gain have his independence and particularity.From the structure of the system, it is different from Unjust Enrichment and illegal Negotiorum Gestio. In Unjust Enrichment, right violations Unjust Enrichment have similar outcome about retain the gain, but the constitutive requirements of unjust enrichment don’t contain fault and illegality, in the circumstance of infringement, the application of Unjust Enrichment may lead to the conflict of theory. In addition, the theories of illegal Negotiorum Gestio also can’t match with disgorge or strip the gain. So it has its own characteristic.Exploring the situation of disgorge or strip the gain in existing legal system of China, Article2of Tort Liability Law ruled disgorge or strip the gain, but it can’ t achieve the function of disgorge or strip the gain, in addition, there is some questions on the burden of proof, infringer gain the interests makes him more advantageous compared with oblige, so the inversion of burden of proof play an effective role on strip the gain or some fees deduction. In practice, infringer gains the interests from his infringement act, but the affirmation of gain and the account is abided by Damages. It can’t reflect the intension of disgorge or strip the gain, therefore, disgorge or strip the gain can have his function on the protection of legal interests by consummating the system.