On The Application Of Profit Return Rules For Infringement Of Spiritual Personality Rights

The law has made many attempts to regulate the behavior of infringing on the spiritual personality rights of others and obtaining benefits as a result.Finally,Article 1182 of the Civil Code stipulates the rule of profit return of personality rights,requiring the infringer to compensate based on the benefits obtained as a result.However,this provision did not achieve the expected effect in practice,and the judge instead showed a phenomenon of escaping from the "judge’s discretion" provision in the last sentence of Article 1182 in relevant judgments.In order to solve the problem of poor practical effectiveness of the rules for the return of personal rights profits,it is necessary to start from three aspects:the basis of claim rights,the specific amount of return,and the allocation of burden of proof.Firstly,it is necessary to determine the basis of the right of claim,as it relates to important issues such as the constituent elements,burden of proof,and legal consequences in the application of the profit return rule.Starting from the theory of "ownership of rights and interests",the emphasis of unjust enrichment in the form of infringement of rights lies in taking away the illegal profits of the perpetrator,which is consistent with the goal of the profit return rule to deprive the perpetrator of illegal profits.At the same time,the behavior of the perpetrator infringing on the spiritual personality rights and interests of others and obtaining benefits as a result also meets the four constitutive requirements of unjust enrichment in the form of rights infringement.Therefore,the profit return rule should be based on the system of unjust enrichment based on rights infringement as the basis of the right to request.Secondly,in terms of the legal effect of return,attention needs to be paid to determining the scope of return and calculating the specific amount of return.This article first defines the losses suffered by the right holder and the benefits obtained by the actor,and compares the size of the two,distinguishing between two situations:"the benefits obtained by the actor outweigh the losses suffered by the right holder" and "the benefits obtained by the actor are less than the losses suffered by the right holder".Then,based on the subjective state of the perpetrator and the necessity of personality identification in the infringement profit,the amount of return for the innocent or malicious perpetrator is determined.Finally,in terms of the burden of proof,the current situation of excessive burden of proof on the rights holder should be alleviated.On the one hand,the obligee initially proves the existence of the total profits of the infringer.At this time,the defendant can be required to cooperate with the plaintiff to obtain evidence by virtue of the "evidence disclosure system" and the "evidence obstruction rule" stipulated in the intellectual property law,otherwise the defendant will bear adverse liability.On the other hand,the actor proves the amount that can be deducted by themselves,that is,proves the role of the production factors they invest in profits to determine the allocation ratio,otherwise they will have to bear adverse consequences.