Research On The Legal System Construction Of Profit Return

In our country,the tortfeasor's "profit" as the way to the victim compensation legislation first appeared in the March 1,1983 implementation of the Trademark Law of the People's Republic of China(hereinafter referred to as the "Trademark Law")of the provisions of article 39,and then,in the Patent Law of the People's Republic of China(hereinafter referred to as the "Patent Law"),the Copyright Law of the People's Republic of China(hereinafter referred to as the "Copyright Law")and "Tort Liability Law of the People's Republic of China"(hereinafter referred to as the "Tort Liability Law"),and other laws all have the relevant provisions of the return of the profits.The nature of return of the profits in academia has not yet form a unified point of view,some scholars believe that the basis of claims for the return of profits is infringing,appling the "Tort Liability Law";Some scholars believe that the basis of the right to claim for the return of profits for the management of non-existent;Some scholars believe that the return of profit is an independent claim basis……This paper argues that the return of profits is an independent basis of the claim,which can form a new type of debt,that is the debt of the return of profit.This paper mainly consists of the following parts:First,this paper discusses the necessity of constructing debt of the return of profit.This paper argues that the necessity to study the construction of a system needs to start from two aspects: first,the legal system has certain theoretical support;secondly,the legal system has realistic needs.This paper argues from different angles that the right to claim the right to return of profit is an independent claim,that is foreign theory and domestic theory.Then this paper analyzes the defects of the related legal system,such as "Tort Liability Law" of article 20,"Patent Law" of article 65 and so on,which shows that the existing legal system can not effectively solve such cases.This article also combines the relevant foreign legislation practice,and further demonstrates the design the debt of the return of profit of the trend.Second,this paper explores the basic principles of debt of the return of profit issues.As the modern civil law is abstract legal concepts and strict legal system formed by the code,therefore,the concept of debt of the return of profit will become the first study of the problem.If the debt of the return of profit to be repaid as a separate type of debt,it must have its unique elements.This paper argues that the debt of the return of profit have four constituent elements.That is tortfeasor violate others' legitimate rights of others and profit;the victim's rights have been violated and his loss can not be calculated;tortfeasor's profits and victim's loss have causal relationship,and tortfeasor's consciousness is intentional or gross negligence.And then further analyze the function of debt of the return of profit,this paper argues that it's main function inclouded punishment and prevention functions.Third,this paper discusses the differences between the types of debt of the return of profit and other types of debts,so as to demonstrate the existence of the value of the debt of the return of profit system.In view of the similarity between debt of the return of profit and tort damages,this paper first demonstrates the relationship between debt of the return of profit and the debt of tort damages.In the demonstration of the relationship between debt of the return of profit and non-management debt,the paper emphasizes on the difference between debt of the return of profit and unscrupulous management,because there are scholars believe that the return of profit and unscrupulous management has internal consistency.Similarly,in the demonstration of the relationship between debt of the return of profit and unjust enrichment,the paper emphasizes on the difference between debt of the return of profit and unjust enrichment of rights and interests.Fourth,this paper put forward the measures to construct the system of the debt of the return of profit.In the preparation of the Civil Code in China,we should set up the general principles of the law of debts in the Civil Code,then design the debt of the return of profit in the general principles of the law of debts,and clearly define the way of profit and the burden of proof.This article also discusses the main situations of the application of the system of the debt of the return of profit,including the application of "infringement of personality right","infringement of intellectual property rights" and "two-times sale for single good" and so on.In addition,in the practice when we using the debt of the return of profit system in the practice,we should be excluded from the principle of profit and loss balance,and we should use the principle of contributory negligence.This paper mainly discusses the two aspects of content: the first is that the right of return of profit is an independent right of claim;the second is how to construct the debt of the return of profit system.The innovation of this paper is not only to discuss the right of return of profit is an independent right of claim,and on the basis of this theory,build a new type of debt,that is the debt of the return of profit,and clear its elements of application,the scope of application and the problems that should be paid attention to in the application.This article mainly uses the comparative research method and the case analysis method.By comparing the domestic and foreign theories on the right to claim for the right of return of profits,it is proved that the right to claim the right of restitution is an independent right of claim which has been recognized by most scholars at home and abroad.By combining the cases,we found that the existing legal provisions can not deal with such cases;And then this paper demonstrates the necessity of constructing the system of the debt of the return of profit.