Study On The System Of Returning To The Right Of Inheritance

In traditional civil law,personal rights and property rights are binary,but with the development of society,the property interests in personality rights gradually appear,and the phenomenon that the personal marks are commercialized by others also occurs frequently.The traditional system of dual rights is facing a dilemma.In order to breakthrough this dilemma,different countries choose different paths to solve this problem,the United States' privacy-public rights binary system and Germany's monism are the typical cases.China should adopt the monism model,but we should not copy the German personality right theory.It should regulate the commercial use of personality signs through the return of benefits in the Tort Liability Law.The issue of benefit return has received great attention abroad,and the relevant doctrines and jurisprudence are relatively rich.There are unreasonable management,claims for damages,and multiple claims.theory.Article 20 of China's Tort Liability Law refers to the rules for the return of benefits,but from the four-tiered structure of “damage compensation,benefits return,negotiation by the parties,discretion of the court” as stipulated in the law,the benefits return has not obtain an independent status.Article20 of China's Tort Liability Law cannot fully cover the type of benefit return.It abandons the original structure and places the return of benefits and damages on an equal footing.The benefit return shall be an independent claim that is subject to the infringement regulations.The reconstruction of China's benefit-return system should clarify the basis of its claim.The benefit return is still on the constituent elements based on the establishment requirements of the tort liability.The primary constituent element is the act of infringement of the rights and interests of others.The right holder needs to be harmed,but the loss is not necessary.In terms of legal consequences,it is similar with unjust enrichment,but it has its own uniqueness.Its“profit” with improper return is different.On the issue of burden of proof,it mainly involves the existence of infringement.the profit of the infringer,the causal relationship,the intention of the infringer.The proof of the existence of the infringement and the subjective intention of the infringer follow the principle that “who advocates who gives evidence”.While the infringer's profit and the causal relationship needs to be reversed by the burden of proof to protect the interests of the victim better.