Research On Profit Deprivation

The traditional compensation for damages in civil law is based on the damage suffered by the infringed,and the goal is to make every effort to compensate the loss of the infringed.However,more and more new forms of civil rights have emerged.Considering the compensation for their losses only from the perspective of the infringed may lead to the unfair and insufficient protection of the interests of the infringed.This situation gives us new enlightenment,that is,we can consider how to compensate the infringed from the perspective of the profit of the infringer.Although the current laws,such as the trademark law,the copyright law,the patent law and the civil code,have gradually added the system based on the infringer’s profit as the basis of compensation,due to the traditional inherent thinking of calculating the infringer’s compensation scope based on the actual loss of the infringed and the imperfection of the determination of the infringer’s profit amount,Therefore,the system as the basis of compensation from the perspective of infringer’s profit can not be well realized in practice.The incompleteness of the theory makes the application of practice more difficult,and the diversity of the actual situation is a big problem for the application of legal provisions.This paper hopes to draw the best applicable conditions and scope of profit deprivation through the comparative study of relevant systems and profit deprivation.The main purpose of this paper is to find a more appropriate way to protect the legitimate rights and interests of the infringed,combine theory with actual judgment,and mainly study the application of profit deprivation in China’s law and whether profit deprivation can be included in the existing systems of tort damage compensation,unjust enrichment or illegal management,so as to analyze the definition and application of profit deprivation.The article is divided into three parts as a whole.Firstly,it mainly discusses whether the existing tort system can solve the problem of compensation for the loss of the infringed,so as to prove the necessity and feasibility of applying profit deprivation.Secondly,it mainly discusses the composition of profit deprivation,the limitations of profit deprivation system itself and the possible problems in applying profit deprivation with reference to the existing tort system.Finally,it mainly discusses the scope of application of profit deprivation,The perfection of the application of profit deprivation by the infringed,the infringer and the court.Finally,I hope to get the answer of how to stipulate the scope of application,the order of application,the principle of imputation and the scope of profit deprivation.The final problem that this paper hopes to solve is that there can be an independent and complete claim of profit deprivation,so as to better protect the interests of obligees and prevent and punish infringement at the same time.