Research On The Rules Of Profit Return Of Personal Right Infringement

In traditional theory of personality rights and property rights is to distinguish the two yuan,only spiritual attributes of personality right and no property value,the development of the Internet and the mass media to have the personality rights and interests of the commercial use of more and more common,many stars have opted to use its image do endorsement for goods,make the personality rights and property value.In judicial practice,there are more and more cases that merchants violate stars’ right of portrait and right of name for profit.Article 20 of the original Tort Liability Law stipulates the rule of profit return for infringement of personal rights and interests,which provides a relief way for the compensation of personal rights and property interests.It establishes the principle of "profit as damage".Compared with the actual damage,the profit of the infringer is a relatively certain amount.Determining the victim’s property loss through the infringer’s profit fully reflects the advanced nature of legislation.Article 1182 of the Civil Code also inherits and develops this rule,which eliminates the restriction on the application order of "actual loss" and "profit",effectively elevates the status of profit return rule in China’s tort law,and is conducive to fully protecting the rights and interests of victims.However,the application of the rule in judicial practice is not ideal,there are still some problems to be clarified,such as unclear understanding of the nature of profit restitution,difficulty in determining the amount of profit and no reference standard for the judge’s discretion.First of all,there is a dispute in the theoretical circle about the nature of the claim right for the return of profits from the infringement of personality right.This paper argues that the principle of compensation for damages cannot cope with the situation of "the infringer retains illegal profits" by sorting out different theoretical viewpoints.Illegal non-cause management cannot regulate profit return;The correspondence of "gain" and "loss" in unjust enrichment is obviously different from the rule of profit return.Therefore,it should be recognized that the profit-return rule stipulated in Article 1182 of The Civil Code of China has independent claim status,which is different from damages,unjust enrichment and management without cause.Recognition of its independent status is conducive to the development of the prevention function of tort law,strengthen the protection of victims.Need clear of second,profit,profit should be with the violations of the rights and interests of causation that part of the interests,both actors thus increase the interests of the including licensing fees,save for the person specific when calculating the amount of profit shall be deducted from the offender’s cost,otherwise it will give the victim windfall;In terms of the burden of proof,the author points out that the burden of proof of the victim is too heavy,and proposes to reduce the burden of proof of the victim by inverting the burden of proof,lowering the standard of proof,and referring to the rules of evidence disclosure in intellectual property rights.Finally,the specific application of the judge’s discretion is expounded.Make it clear that the discretionary object should be actual losses rather than gains;A discretionary proceeding may be initiated either by a judge or by the victim;It makes clear the factors to be considered in the decision,including the factor of profit,the factor of actual loss and the factor of tort,and puts forward that the judge should take profit as the main factor and other factors as the auxiliary factor in the decision.