Research On Disgorgement Rules Of Personal Rights Infringement

The illegal profit of the infringer in the disgorgement is a relatively definite amount,and it is superior to design reasonable rules to use the infringer's profit to determine the amount of property losses.But the practical application of the existing rule shows that there are very few cases in which the amount of property loss is determined by the disgorgement,and the vast majority of cases use a discretionary method to determine the amount without uniform discretionary criteria.These practical experience shows that there are some problems in the application of this rule,which can be summarized as follows: first,the basic problem of the claim for the disgorgement;second,the determination of the infringer's profit and the calculation of the amount;thirdly,the improperly application at judge's discretion.In order to solve these problems and promote the application of the rules for the disgorgement,the following three points need to be clearly defined.For the first question,whether in terms of its normative purpose,institutional function or loss type,the basis of the claim for the disgorgement should be the right to claim damages for property and not punitive damages;In view of the second problem,defining the scope of disgorgement,choosing the right profit calculation method and solving the proof problem are good response.The scope of the return of the infringer's enrichment should be limited to the profits derivedfrom the infringement,the calculation of the profits should be fulfill in relation to the share of the infringer's profits and pay attention to the use of the fictional fee,while the issue of proof should be resolved by the plaintiff providing preliminary evidence combined with the judge's reasonable presumption and the application of indirect evidence;in the third case,to avoid the improperly application at judge's discretion,it is necessary to determine the applicable conditions and discretionary factors based on clarifying the necessity of the judge's discretionary rules.Besides,it is important to clarify the advantages and disadvantages of the maximum limit.