Research On The Application Of Profit Rebate System That Violates Personal Rights And Interests

Today,with the continuous development of commodity economy,the commercial value of personal rights such as portrait right and name right is also becoming increasingly prominent.Infringement of the personal rights and interests will bring profit to the perpetrator,and the profit is often greater than the actual loss of the victim.In order to realize the comprehensive relief of the personal rights infringement,China has established the relief mode of profit return.With the promulgation of the Civil Code,the profit return system has been further improved.Article 1182 of the Civil Code has abolished the order of actual loss and profit return,and the victim can directly apply for profit return without the precondition that “loss is difficult to determine”.However,there are still some disputes and difficulties in the operation of the profit return system in the Civil Code,including the basis of the claim right of profit return,the calculation method of profit-return,and the extensive use and standard exercise of the discretionary power of the court.On the basis of the claim for profit return from infringement of personal rights.Theoretically,there are different views on whether profit return should be an independent claim.Scholars who hold positive view point out the uniqueness of profit return and call for the establishment of an independent profit return system.Scholars of negative view think that it is too early to break through the existing legislative system,and the basis of the claim right of profit return belongs to unjust enrichment,negotiorum gestio or tort compensation.Profit return is essentially different from unjust enrichment and negotiorum gestio,and can not be regarded as an independent right of claim.As the remedy path of personal rights and interests suffered,profit return is based on tort compensation.On how to determine profit from infringement of personal rights.On the one hand,the insufficiency of burden of proof distribution should be solved.According to the general distribution of burden of proof,the plaintiff's burden of proof is heavier in the case of profit restitution.The plaintiff bears the responsibility of proving the fact of the infringement and preliminarily proving the defendant's profit,while the defendant bears the specific situation of proving the profit,which can realize the reasonable distribution of the burden of proof between the two parties.On the other hand,in view of the calculation method of profit return amount,the use of qualitative analysis method of profit sharing to determine the amount of return exists shortcomings.It is relatively objective and accurate to calculate profit by drafting license fees.Dilemmas regarding the court's discretionary application.On the one hand,it is necessary to make clear the object and initiation mode of the court's discretionary compensation.The court should initiate discretionary according to its authority based on the comprehensive consideration of the actual loss of the victim and the profit of the infringer.On the other hand,it is necessary to clarify the important factors of the court's discretion and the standard exercise of the court's discretion in such cases so as to avoid the problem of excessive discretion of the discretionary amount.