Profit Return Claim Problem In Personality Right Infringement

Article 20 of tort liability law provides for the right to claim for the return of profits,which has attracted wide attention from academic circles.First of all,from the perspective of the law itself,the right to claim for the return of profits does not completely meet the constitutive requirements of the traditional system of compensation for damages.There are mainly the theory of unjust enrichment,the theory of compensation for tort damage,the theory of management without cause,and the theory of independent claim.Returned claims by profit at the same time has the characteristics of damage compensation and unjust enrichment,exist in between,is defined as independent claims more in line with its characteristics,can make its judicial operational stronger,system more complete,proof and amount to be more perfect,the rules of the beneficial to the victim's right protection,legal protection.Secondly,according to the current "tort liability law" regulation,the victim burden overweight,the victim has proved itself the loss of the burden of proof,but due to the invisibility of the personality right,mostly indirect losses,if the victim has not to commercialise personality right,will not be able to determine its property values,also cannot determine whether their losses.In addition,it is difficult for the victim to collect the evidence of the infringer's profit,which also makes it difficult for the victim to provide evidence.If the victim is unable to provide evidence,the right to claim for the return of profits cannot be applied,and the amount of compensation can only be determined according to the discretion of the court.The discretion of the court is usually relatively low,which is not conducive to the protection of the victim's rights and interests.If we can learn from the obstruction of proof rule of the trademark law,let the infringer prove whether his own profits are related to the infringement,so as to balance the distribution of both parties' responsibilities and interests,so as to make the rights and obligations more equitable.In addition,article 995 of the draft civil code removes the limitation on the order of application of the right to claim for the return of profits,which also reduces the burden of proof for the victim.Finally,the law does not provide for the determination of the amount of the infringer's profits.When the court applies this article,it is difficult to determine the amount of the infringer's profit because there is no clear calculation standard and the law does not specify the scope and basis of the calculation of the infringer's profit.The two sides could not reach an agreement on the amount of compensation,which led to the court's discretion in most cases and reduced article 20 of the tort liability law to specific text.There is a lack of statutory standards in the discretion of the court.In reality,the court's discretion is too large and the compensation amount is far less than the actual loss of the victim,which is not conducive to the protection of the victim's rights and interests.Through the analysis of judicial practice and foreign legislation,the scope and calculation basis of the amount of the infringer's profit are determined,including obtaining benefits and saving costs,and the difference between the profit from the exploitation of the infringement and the profit from normal operation or the reference of the fictitious license fee.In this way,the law is moreoperable,and the court has specific legal basis when determining the amount of compensation,which is more conducive to balancing the interests of both parties and protecting the rights and interests of the victims.