Study On The Restution Of Enrichment Gained From Wrongful Infrigement

In judicial practice,cases such as infringement of personal rights and intellectual property right occur frequently,and the infringers gain enrichment from wrongful infringement which far exceeds the actual loss caused to the right holder or causes no loss to the right holder.As for how to deal with the enrichment from wrongful infringement,the discussion is triggered.Enrichment from wrongful infringement refers to the relief of the victim based on the profits of the infringer,rather than the actual loss of the victim.The provisions on the restitution of enrichment from wrongful infringement can be found in the fields of intellectual property law,tort law and so on,but the legal practice of the restitution of enrichment from wrongful infringement in China lags far behind the law expression,and it is rarely applied in judicial practice.Literally,enrichment from wrongful interference includes both conditions for imputation of tort liability and the legal effect of unjust enrichment.How to deal with the enrichment from wrongful infringement not only involves the value concept of unjust enrichment system but also the application of the infringement damage compensation and negotiorum gestio.First of all,the claim of illegal negotiorum gestio is not the basis of the restitution of enrichment gained from wrongful infrigement.In terms of the legal effect,it can use the regulation of negotiorum gestio-requesting the infringer to return the management interests or sanctioning the illegal infringement.At the same time,the administrator can keep the management cost in the interests without returning all the profits to the victim,which also avoids the improper profits of the victim.However,the scope of management and legal effect are uncertain in illegal negotiorum gestio.Illegal negotiorum gestio is only similar to real negotiorum gestio in form,but it lacks the core elements of negotiorum gestio,that is,managing affairs for others.There are essential differences between the two.Secondly,the claim of infringement damage compensation is not the basis of the restitution of enrichment gained from wrongful infrigement.The theory of the basis of the claim of infringement damage compensation says that our current legal system in determining the amount of infringement damage compensation regards the profit as the calculation method of damage compensation,and the profit is equal to the loss.Although this method is convenient to solve practical problems,it deviates from the legal basis behind the calculation method of damage compensation,and also causes the excessive expansion of the concept of damage.The principle of bridge of infringement damage compensation cannot achieve satisfactory relief for the victims in the case of profit restitution.At the same time,the establishment of the claim for infringement damage compensation requires subjective fault.In intellectual property cases,sometimes there is no fault or the fault is difficult to prove.Within the claim for infringement damage compensation,some people think that the return of infringement profits is a kind of supplementary and exceptional provision.When the malicious infringement profits occur,it will return all the profits and limit the scope of return of infringement profits to the scope of personal rights,and also deviate from the principle of complete compensation in damage compensation,which is not of universal significance.Trademark law of China adopts "or" to link up infringement profits with the actual loss,and article 1182 of the civil code also place compensation for actual losses and profit restitution in an alternative position.While seemingly independent,at present,the provisions on the infringement profit restitution are still not free from the shackles of infringement damage compensation,which does not mean that the infringement profit restitution can only depend on the claim of infringement damage compensation.Finally,the claim of restitution of unjust enrichment was justified.The establishment of unjust enrichment of rights and interests infringement does not take the infringer’s subjective fault as an important factor,and does not require that the loss and benefit must be equal.It is a kind of relief means to deal with the cases in which the profit is greater than the loss in infringement profits or the loss is not caused to the victim.Based on the theory of ownership of rights and interests,the unjust enrichment of rights and interests infringement can be determined to cause damage to others on the basis of the same fact,and get rid of the limitation of actual loss of infringement damage compensation.The scope of return of unjust enrichment of rights and interests infringement should not be subject to the actual loss,but be defined according to the subjective state of the infringer: when the infringer is intentional,the responsibility of the malicious beneficiary should be increased to return all the profits,which also makes the fault and illegality regulated in the unjust enrichment of rights and interests infringement.