Research On Profit Return Rules Of Tort Law

The issue of profit return in tort law has not been hotly debated in China since the introduction of the Tort liability law in 2010,and in recent years,such problems have also been widely concerned in the judicial practice and legislation of our country.Draft of tort liability in Civil Code under revision the provisions of the "Rules for the return of profits" have changed considerably from the existing laws.Most of the reasons for the change are related to the treatment and resolution of the increasing problem of tort compensation in the real judicial practice,most of the judicial cases have a mixed judgment standard for personal infringement,and few cases are judged according to the victim's loss or the specific amount of the Infringer's profit.The number of cases in which the amount of compensation is determined at the discretion of the judge is a large part.It is precisely because the 20 th article of Tort Law has not produced its original function in practice,how to interpret and locate the legitimacy basis,scope of application and specific applicable rules of tort profit return rules,which need us to carry out in-depth research.For the first time,article 20 th of the Tort liability law establishes the profit return rule,which is regarded as the factor of calculating the amount of damages,and whether it breaks through the idea of filling the law of compensation for damages.This article only aims at the situation of infringement of personal rights,does not include the property right,violates the property interests of personal rights at the same time raises the question of the commercialization of personality power,this paper mainly discusses from the legitimate basis of profit return,explains the theoretical support of profit return,and tries to expound the specific application of the rule.The first chapter is the introduction of the full text,which mainly explains the background of choosing to pay attention to the tort profit return rule,the possible significance of studying the rule in the theoretical and practical application,as well as the starting point and the research method.The second chapter focuses on the legitimacy basis of the rules for the return of tort profits,and the theoretical views of different legal systems at home and abroad are roughly summed up as unjust enrichment,saying that the illegal management says that the right of claim for profit return of unjust enrichment and the right of claim for tort damages are said,and the independent claim right and the objective calculation method say,The author agrees that its legitimacy basis should not be separated from the broad framework of tort law,and interpreted as an objective method of calculation,which can effectively solve the predicament of theory and practice.The third chapter probes into the scope of application of the rules on the return of tort profits,points out the limitations of the current law on the scope of profit return,and attempts to seek a reasonable space for the existence of commercialized personality rights from the two-dollar system of personal and property rights,and expands its scope of application.The fourth chapter introduces the specific applicable rules of the return of tort profit,it is necessary to make clear that the profit connotation is all the benefits obtained by the perpetrator as a result of the tort,deduct the cost arising from the profit,adopt the correlation standard,calculate the specific amount by analogy with the existing system,and make clear the specific reference factors for the judge's discretion.A method for calculating the royalty is proposed with reference to the proposed royalty.This paper provides a relatively objective standard for the discretionary power of the judge and enhances the practicability of the profit-return rule.