Research On The Compensation Of Profitable Personal Rights Infringement

As a compensatory way,the traditional tort damages cannot protect the victims ' property rights comprehensively and effectively.The 20th article of China's Tort Liability law stipulates a new kind of right remedy for the infringement of personality--disgorgement damages,which realizes the relief to the victim's property rights by depriving the infringer of illegal benefit.At present,the 20th article as the legal basis for the disgorgement damages to the infringement of personality,the academic circle is not controversial,but about the application of the object,the composition,the application basis and the value function,scholars still have different views.The disgorgement damages should be deeply explored and continuously developed in the practice and theory circles of our country.This paper analyzes the article 20 of tort liability law by means of explanation theory,and further discusses the following main problems.First of all,the main difference between disgorgement damages and traditional damages is the form of the loss.In the disgorgement damages,the infringer infringes on victim's personal right of property,which makes the victim's benefit suffer from loss,and it is an invisible loss.In the traditional tort damages,the infringement has caused actual damage to the victim,which is a loss of the inherent interest.What's more,through analyzing the cases of the infringement of personality in practice,we can find that compared to the damage and benefit relationship caused by the tort in the general damages cases,only when the benefit exceeds the damage,the disgorgement damages is the best legal way to realize the benefits compensation.Secondly,about the applicable object,this paper holds that the applicable object should be limited to the property personal rights and interests,and illustrates from three aspects:First,with the development of market economy,the traditional two-yuan rights system is shaken.The infringer uses the victim's personal right of property without authorization and infringes the victim's rights and interests.The appearance of new legal relation inevitably requires the law to make clear stipulation,this is also the realistic background of the 20th article of Tort Law.Second,the property of personal rights and interests is different from the material property interests,it is "intangible property." In the case of compensation for infringement of personal rights,the victim has great difficulty in providing the evidence.In order to reduce the difficulty of proving and protect the victim,the tort law in our country stipulates that the victim does not need to prove the actual loss caused by the infringement,and it solves the realistic problem that the victim's loss is hard to prove.Third,the infringement of personal interests and property interests is difficult to relief and fill the damage after the fact,but the compensation to the victim is soothing,and also plays a deterrent effect to the infringer.Moreover,scholars who advocates "unjust enrichment","non-cause management" and"punitive damages"have different opinions on the right to claim compensation for personal rights infringement.This paper introduces some main viewpoints,and concludes on the basis of researches,relevant theories and judicial practice:The disgorgement damages should be regarded as an independent right of claim.The paper discusses the special value function,significance and the realistic need,and introduces the relevant laws and theories in the comparative law,hoping to provide a certain role in reference.At last,this paper introduces some practical problems in the application of disgorgement damages,and puts forward some concrete solutions.About how to identify and calculate"benefit" the paper introduces Germany's "license fee loss said." and analyses some cases in our country's courts about the cognizance of "economic loss",the author summarizes some factors for the judge to use their discretionary power,including the market value of the victim's portrait,the degree of subjective fault of the infringer,the specific circumstances of the infringement,and the potential profit.The author thinks that we can make the interests of the infringer be independent from the total income obtained by the infringer,and then comprehensively consider the amount of compensation to the victim,only this can balance law and be fair.On the issue of how to distribute the burden of proof reasonably,the author thinks that the victim needs to prove the fact of infringement,and the infringer should borne the proof of the specific amount of the benefit and the burden of proof which should be deducted from the benefit.