A Study On The Return Of Profit For Infringe Upon The Right Of Personality

Modern commercial development has led to the progress of traditional theory of right of personality,and the spirit of personality right no longer be limited to value barriers,their property value is increasingly prominent.Since then,the unity of personality rights and the property rights of personality rights has become the general theory of modern civil law."Tort liability law" twenty-second lays clear emphasis on the topic of spiritual damage compensation,and then the spirit of personality rights can be protected.The "tort liability law" article twentieth admitted the property interests in the right of personality and created a "profit return" theory in the mainland of china.However how to claim the basis of profit return has become a big problem in academic circles.In addition,the calculation method of infringement in personality "profit return" has also aroused great controversy.Infringement of personality rights claims based profit return such as" unjust enrichment "" tort liability "" management without reason "and" independent claim"theory;The calculation method of infringement in personality right adapts to" profit return ",with the analogy" unjust enrichment "and" negotiorum gestio "" the tort damages "and" law and Economics analysis and calculation method.This paper argues that the right of claim for profit return belongs to the right of claim for tort damages.To calculate the amount of return cost,profit return should be used to deduct the necessary cost of the victim in the compensation for profit return,and to apply the burden of proof in order to determine the amount of profits of the infringer.