Study On Legal Regulation Of Gain-based Tort

Traditional rule of compensation for damages aims to recover the infringed to original state, but without paying much attention to the gain of infringer. Though damage fill-up rule can effectively solve loss-based tort cases, it is difficult for it to effectively respond to increasing gain-based tort cases when profits of infringer are higher than loss of the infringed. Allowing the infringer profits will cause a series of disadvantageous subsequences, such as violation to the principle of “profit prohibited” in tort liability law, disturbance of normal transaction order and no effect on prevention by tort liability law in prevention. At this moment, it is difficult to say law can effectively safeguard individual interests and rights. Conforming to the trend and search for suitable roadmap of legal regulations is necessary. For the reason that the gain-based tort means the infringer can gain more benefit than that the infringed loses, it can make a connection with many branches of the civil law, thus this problem possibly can be solved at the aim of regulating gain-based tort from this perspective. First of all, this paper surveys cases of judicial practice, then analyzes feasibility of various roadmaps of legal regulations and further proposed suggestion: structure preventive damages.In addition to the preface and conclusion, this paper is divided into three chapters.The first part is the judicial practice and proposal of problems. This part mainly introduces cases of Chinese judicial practice and some other typical gain-based tort cases and points out that current laws and judicial interpretations of China still follow full compensation rule of recovering it to original state, but to fail to form compensation rules for gain-based tort cases, thus causing a series of problems.The second part is possible roadmap of legal regulations and its analysis. For the problem that profits of infringer are higher than loss of the infringed, this part mentions both foreign and domestic legal regulation methods on practice and theory and conducted specific explorations. Firstly, profits of infringement should belong to the country. However, tort liability law is still concerned about private fields so that it is not proper for public powers to intervene into it. And public institutions are lack of motivations for investigating responsibilities. Secondly, profits can be regarded as the alternative calculation method. The rule is the product of compensation principle outside tort liability law and it does not have any preventive function. Thirdly, take profits as the quantitative factor to determine amount of compensation. This is also an operable roadmap based on judicial interpretations of China, but it cannot deprive profits obtained by infringer viciously and the rule is restricted to be applicable to cases on personal rights of infringer in China. Fourthly, apply the rule of quasi negotiorum gestio. The rule still has insurmountable limitations. Fifthly, apply the rule of unjust enrichment. However, the function of unjust enrichment is limited, it cannot satisfactorily deal with the gain-based tort cases. Lastly, set the right of claim for disgorging the gain. The right of claim is too widely applicable so that it is easy to cause crisis of abusing power. So, regulations on benefit-based infringement behaviors need to be further thought and explored by us.The third part introduces the effective way to regulate the gain-based tort. The part suggested preventive damages rule oriented by the future should be established to solve the problem on profits of infringer. First of all, it introduced the meaning, diversified functions and value pursuits of preventive damages to demonstrate the legitimacy of building the rule. Then, it specifically stated how to structure preventive damages rule, including constitutive requirements of liability for preventive damages, calculation of profits, distribution of burden of proof etc. Finally, developing the relevant legislation. Modifying article 20 of tort liability law.