Research On The System Of Restitution In Infringement Relief

Restitution is one of the tort liability methods.Article 179 of the General Principles of the Civil Law of the People’s Republic of China(hereinafter referred to as the General Principles of the Civil Law),Article 36 of the Real Right Law of the People’s Republic of China(hereinafter referred to as the Real Right Law),and the Tort Responsibility Law of the People’s Republic of China(hereinafter referred to as the Tort Liability Act "Article15" regulates them all."Restitution" is due to its semantic inclusiveness and diversity.There are three definitions of its connotation in the theoretical community.In a narrow sense,restitution refers to the right of the right holder to request the infringer to restore the material through repairs and other means when it is damaged.Broadly speaking,restitution refers to the restoration of damaged civil rights to the legal status of the pre-infringement legal status.It is a basic method of damage compensation and is tied with monetary compensation.In the broadest sense,restitution includes the meaning of monetary compensation.China’s legislation and judicial practice narrowly use the theory as a general theory,restricting the repairable physical objects as the scope of application of the restitution system,and repairing,repairing,and other physical means as specific remedies for restitution.However,in the narrow sense,the field of application of the restitution system in our country can hardly cover remediation costs compensation,transactional value compensation,environmental remediation,and other remedies that should be based on the restitution system as the basis of the law.This has led to the academic community’s restoration of the status quo system.The connotation,legal status,the internal structure of the system,the nature,the applicable conditions,and the application of restitution under environmental tort can be applied.At this stage,the discussion on the connotation and legal status of restitution is focused on the research of comparative law.The connotation of the restitution system of civil law is broadly based on recognition of its principled legal status,such as Germany,Japan,Switzerland,and South Korea.However,the object of restitution in different countries is different.The common law restitution system,as a general rule clause,focuses on the restoration of the economic value of real estate,and restoration ofcompensation for costs is the norm.It can thus be seen that reinstating one of the basic contents of absorbing compensation for restoration costs is the development trend of the system.On this basis,the issue of the nature of restitution should also be worth rethinking.Based on whether or not the status of restitution is an independent responsibility-bearing approach,the academic community has three perspectives on its nature.Some scholars believe that the right of restitution can be independent of the original right of infringement,which is consistent with the nature and function of the right of infringement and should belong to the creditor system.Some scholars believe that the right of restitution is stipulated in Article 36 of the “Property Law”.It requires that the actual existence of a damaged object and that it can be repaired is dependent on the existence of property and property rights.It should be the right to request for property rights.Some scholars also believe that there are multiple meanings in the restitution claims in our country’s laws.It is not easy to define their attributes,and the particularities of restitution in different situations should be distinguished.From the point of view of restoration of costs as one of the basic contents of the restitution system,restitution can be distinguished from the internal structure by the restitution of specific means and the restoration of the original status.Because the means of restituting the original status request and the right of real right have different characteristics,and the alternative restitution request right is the same as the typical claim right,so the restitution request right under the visual field of view can be determined as the request right of the claim attribute.The application of restitution is subject to two important conditions: damage can be repaired and repaired cost-effectively.Reparability requirements,the scope of application of restitution is limited to physical damage.And there are two criteria to measure the effect of repairs.First,technical standards and second,value standards.The theoretical controversy is whether the devaluation of transactional value in the value standard can be remedied.In order to protect the full interests of the right holders,if there is evidence to prove the use of the damaged objects for trading,the devaluation value of the transaction should be included in the scope of restitution.In addition,the identification criteria of economic rationality and the reference system are in a state of long-term absence in thejudicial practice and are often criticized by the theoretical community.Case studies have found that the practice of justice applies to analogies of the “Contract Law”.However,for special objects,such as objects with a meaning of human beings,objects with artistic collection value,objects with low circulation rate,environmental resources,and ecological systems,it is worthwhile to comply with the conditions of economic rationality under the precondition of being repairable.Discretionary.Due to "special issues,special protection" and the pursuit of substantial fairness of individual cases,legislation should reconsider the conditions of economic rationality.In addition,the application of restitution should also consider the impact of imputability on the scope of liability of the infringer.And the application of the restitution system in environmental tort liability has received extensive attention.Due to the special nature of "environment" and "ecosystem",whether it is from the perspective of technical standards or from the perspective of value standards,it is difficult to return to the "as is" state despite the application of space.For this dilemma,the theoretical community has put forward many solutions,which can be summed up in two broad categories.One is to give up the restitution as an environmental remedy,and the latter is replaced by environmental remediation and ecological remediation.Recoverability standards and economic rationality standards in the state of environmental infringement.Dividing the nature of damage to deal with this issue is a more rational approach.As far as environmental infringement is concerned,it generally causes two kinds of damage: one is damage to the residents or property within the environment,and the other is to the environment.Damage caused by itself and the ecosystem.The first type of damage can be completely remedied according to the traditional tort liability,while the second type of comprehensive damage relief is difficult to reach.Because ecosystems and environmental resources have their own special nature that is difficult to repair,and the applicable standards of the legislation and its restitution system have caused confusion in the restitution application system,it is better to apply independent ecological restoration responsibilities for ecological damage and environmental resource damage.In order to prevent confusion in the application of justice,the relief of environmental resources and ecosystems should be collectively referred to as the responsibility for environmental restoration.Restoring the status quo system must give full play to its institutional functions and still need to cooperate with other related liability systems.From a legal perspective,it is particularly important that the theory clarify the relationship between restitution and other forms of civil liability.Restoring the original status and returning remedies,stopping infringement,removing obstructions and eliminating dangers can be combined and applied due to different protection interests and different legislative purposes.Restitution and compensation for damages should avoid repeated remedies for the same damage,and attention should be paid to distinguishing between partial damage situations.In addition,the evolutionary relationship between restitution and ecological restoration responsibility needs to be emphasized.Legislation should establish an independent ecological restoration responsibility based on the special nature of enviromental damage.