The Application Of Tort Benefit Compensation Of The Personal Rights And Interests

Tort liability law stipulated of the benefit compensation rules on personal rights and interests in article 20.As a new method to remedy rights, benefit compensation rules are still in the stage of research and development in the theory and practice, and the applicable basis, scope and conditions of benefit compensation are quite controversial.Firstly, there was no dispute that the benefit compensation on the personal rights and interests is based on the article 20 of tort liability law. Scholars’ debate is mainly reflected in the basis of claims for benefit compensation, "unjust enrichment", "the unscrupulous gestio", "the Independent said" or "the alternative calculation method of tort damages ", scholars all hold their own views. I agree with "the alternative calculation of damages". It can be concluded that benefit compensation is rather compensation for damages than unjust enrichment or unscrupulous gestio from the expression of article and the legislative purpose and function.Secondly, as for the applicable objects, the scholars who advocated unjust enrichment, unscrupulous gestio, especially independent say that the benefit compensation should expand to the entire debt law system and claims system, in addition to personal rights, property rights, and other rights may also be applicable, while I believe that the benefit compensation objects should be limited to personal interests. There are three reasons, first, with the commercialization trend of personal interests, personal rights and interests are gradually being infringed by unauthorized commercial use, and gain the commercial interests. In the traditional binary system, personal rights and property rights are strictly divided into two part, it’s necessary for tort liability law to make special provisions to fill in the blanks of law; second, since the rights are intangible personality rights, the aggrieved person are often faced with the difficult situation to prove the "loss", in order to protect the victims’ interests, the proof of "loss" has been transformed to the proof of " benefit " which is on the purpose to reduce the burden of proof on the victims; third, the "personality attributes" in personal interests can reasonably solve the problem of victims “unjust enrichment” of benefit compensation,after all, it would never be overstated to compensate the damage of personal rights and interests.Finally, it must meet three conditions to apply the benefit compensation on personal rights and interests: Victims’ losses are difficult to determine, "Infringers gaining the profits, infringer having subjective intent or malice. Only when the victim’s losses are difficult to determine, benefit compensation can be applied; second, the burden of proof should be borne by victims, but the victim does not have the burden of proof normally present predicament, the procedural law may shift the burden of proof from victims to infringers. As for the amount of benefit compensation, some items such as changes in direct costs associated with changes in personal interests, can be deducted; third, the personal rights and interests benefit compensation stress that infringers’ subjective state of mind must be intentional or malicious, to reflect the relatively strong disapproval and condemnation of the regime.In this paper, a literal interpretation, comparison interpretation and system interpretation methods are used to define the nature of benefit compensation on the personal rights and interests, the scope and conditions of benefit compensation, which has a certain theoretical and practical value. The future "personality right law" and "Tort Liability law" will certainly pay attention to the concept of personal rights and interests with property and the way to remedy the losses of victims by benefit compensation.