The Differential Regulation Of Infringement "Benefit Return"

According to Article 20 of the tort liability law,"return of profits" is clearly expressed as relief only for personal rights,while article 1182 of the draft civil code continues the legislative experience of Article 20 of the tort liability law.Although some necessary modifications have been made,it has not been expanded into personal rights and property rights.At the same time,in the draft of the civil code,the order of the exercise of the tort damages and the return of profits has been adjusted,giving the parties the right of choice and juxtaposing it with the compensation rules according to the actual losses.So is it necessary to extend the application of profit return in the protection of personal rights and interests and is it reasonable to give the parties the right of choice? 2.At present,there is no similar modification of the right of choice in the relevant provisions of the intellectual property law.Does the intellectual property law,as a special law of tort law,need further modification,and does profit return have the particularity of application in the field of intellectual property? This paper starts with the differentiated regulation of "profit return" under tort liability,and analyzes how to apply "profit return" under tort liability.The first part puts forward the problems,points out the legislative contradictions under the current tort liability,and points out the differentiated legislative status of "profit return" in personal rights,intellectual property rights and property rights.The second part discusses the related problems of "profit return"."Profit" overlaps with "loss" and "gain" in scope.For the regulation of this part of the interests of unjust enrichment,tort damages and illegal management are difficult to solve the three paths.Therefore,it is necessary to clarify the basis of claim right of "profit return" and establish the applicable rules.The third part analyzes the legitimacy and regulation mode of "profit return".After exploring the rationality of the separation of personality right and property right,this paper takesthem as the basis of the division of application,and discusses the legitimacy of the application of "profit return" to personality right and property right respectively.And with the help of the dynamic system,a new model is established on the constitutive requirements and return rules.The fourth part combs the rules of "profit return" under the tort liability.From the point of view of personality right and property right,this paper discusses the constitutive requirements,return scope and calculation method by using dynamic system.The fifth part analyzes the rationality of intellectual property into the binary system,and focuses on the distinction of copyright,which is divided according to the property rights and personality rights,so that the copyright personality rights apply to the general rules of the return of profits from the infringement of personality rights,for the copyright,the rules of the return of profits from the commercial standard rights and patent rights are unified,and the rules of the return of profits from the property rights are applicable.