The Research Of Infringement Of Personality Right Profit Return

With the effect of market economy environment internet media and "celebrity charm",the marketing pattern of attention economy ties facilitates commercialization of personality right and the exertion of personality right brings economic value to obligee.Personality right is not only defensive right but also active right.With the meaning extension,property interest grown out of personality right is acknowledged and property damage which ascribes the infringement of personality right should be relieved.Not all of personality right able to commercialize,but some spiritual one do,especially symbolic personality right.Worldwide,the protected modes of personality right are different,which are consist of monism and dualism.The difference between monism and dualism is that putting the property interest into the personality right or property right.Our country should insist monism that conforms to our legal system and insures minimum cost.Under the interest-driven,the personality right is usually used without authorization,so that the oblige suffers property loss and the infringer gains benefits.Thought profit restitution relief victims and deprive illegal profits to balance the rights.The legitimacy is to stick up for personal dignity,gave negative comment to illegal act and violation of rights belongness and precoution function.Based on facilitating application of law and relieving victims successfully,it is necessary to search appropriate basic of the requesting right.The difference between the right of the claim for unjust enrichment and profit restitution is that the internal logic,the scope of return object and precaution function.The illegal negotiorum gestio has no legal justification and excessive legal fiction.Regarding profit restitution as negotiorum gestio will go beyond the meaning of legislation that encourages mutual assistance.Using article 6 of tort liability law to be the basic of requesting right,the right of claim for infringement provides relief to profit restitution,and the article 20 makes profit restitution come true.The profit restitution is a formula mode to the amount of damages.The relationship between profit and restitution is substitutional relation.Based on the substitutional relation which used to calculate the amount of compensation,profit restitution can reach the effect of coincidence.Athough infringers may profit from it,profit restitution is also comprehended in the frame of damages.Hence,the right of claim for infringement is the better choice to profit restitution in violation of personal right.There are some application problems of profit restitution in tort law,such as application condition and extent of liability,so that the effect of application is poor.To application condition,the most infringed personality right are identifiable personality right.It is not the requirement of profit restitution that the amount of damages is difficult to confirm.To the scope of restitution,causality can only make sure the scope roughly.The specific method is that using the total profit subtract main business income and the earnings which root in his own production factors.If the infringer can not prove his demurrer,he will pay all his profit based on infringement act.The court can take many factors into account to decide the amount of compensation.