The Legal Structure Of Illegal Profit Compensation

With the continuous development of society and the increasing complexity of human activities,the phenomenon of "obtaining benefits from illegal acts" has become increasingly prominent,and it has also attracted more and more attention from the legal community.As a legal fact,"obtaining benefits by committing an illegal act" should correspond to a specific legal effect and should receive a scientific response from legal norms.When "unlawful profit should be removed" gradually became a consensus,different jurisdictions also correspondingly explored different normative paths:Anglo-American legal system countries developed "beneficial torts" by transforming infringement damage compensation;Under the framework of improper gains,in addition to the "infringement of interests infringement type",the attribution adjustment of unprofitable gains has also been achieved through the drafting of the legal effects of applying uncaused management.Examine China’s existing legal system,and the damage compensation that implements the principle of complete compensation has been branded as a system of "filling losses" since its birth;it is designed to adjust the function of unjustified return of unjustified changes in property.It is difficult to load the behavior evaluation function;causeless management The system is relatively thin and lacks unlawful and unreasonable management as a support,and it is difficult to provide a complete basis for claims.Therefore,finding the basis of the right to claim and the appropriate legal effect corresponding to "implementing illegal activities to obtain benefits" has become a difficult problem to be solved in China’s law.There is indeed a need to learn from overseas experience,review existing systems,and improve applicable rules to respond to the needs of theory and judicial practice.In addition to the conclusion,the article is divided into five parts.The first part leads to the core problem of this article from several typical cases that have occurred frequently in recent years: when the wrongful act is carried out and the profit is obtained,and the profit is greater than the actual loss suffered by the victim or if the victim has no loss or even benefits How to understand this kind of profit? Who should it belong to? What is the basis of claim? How to apply specifically? … The context of the article is formed based on this series of questions and discussed in turn.The second part first interprets the meaning of illegal profit compensation,that is,gaining benefits from illegal acts that infringe on the rights and interests of others.Benefits include the value of the victim ’s rights and interests and the incremental value contributed by the party ’s input into production factors.In this regard,illegal profit compensation should be applied for relief.Then,firstly from the perspective of distributive justice and corrective justice,we get the guidance that the victim retains illegal profits and fits the value of justice;then,with the help of the equitable theory of trust and the structure of power structure,I find illegality from the perspective of rights analysis The original right and power of the right to request compensation for profit have fully completed the justification of the illegal profit compensation.The explanation of the punishment function and the prevention function responds to the compound nature of the illegal profit compensation which combines the compensatory compensation and the punitive compensation.The third part draws a conclusion through comparison analysis: the illegal profit compensation is an independent claim basis.The Anglo-American legal system and the civil law system have developed three normative modes of "beneficial tort","infringement of rights infringement" and "imitation of uncaused management" against illegal profit under different legal environments and legislative habits.However,when discussing these three models in the existing legal context of our country,we will find that none of them can provide an appropriate basis for claiming compensation for illegal profits.In fact,the right to claim compensation for illegal profits has a mixed nature.It not only combines some features of the right to claim damages and the right to return improper profits,but also has its own uniqueness.It should be used as the basis for an independent claim.The fourth part summarizes the four constituent elements of the illegal profit compensation on the basis of the previous theory.They are the wrongful conduct,the profit of the wrongful person,subjective fault,and causality.Among them,the scope of application of "lawful wrongful acts",that is,compensation for illegal profits,covers the three major areas of intellectual property rights,real rights,and contracts,showing an expanding trend.Because the illegal profit compensation has a punitive color,the establishment of liability should be appropriately limited to maintain the overall harmony of the private law system.Therefore,in principle,subjective fault only includes intention.The causal relationship of illegal profit compensation is based on the implementation of illegal acts,and the result of obtaining illegal profits is a relatively weak indirect causal relationship.The specific judgment needs to be constantly enriched and improved in judicial practice.The fifth part is devoted to constructing the applicable rules of compensation for illegal profits,starting from the following three aspects: The first is the application of the law.When considering the amount of compensation,negligent offset should be applied to exclude the application of profit and loss offset.The second is the distribution of the burden of proof,which is divided into two steps: first,the victim first proves that the wrongdoer has profited from the wrongful act,and then the wrongdoer proves the specific profit amount.In this process,the court The positive role of the role is important.The third is the calculation of the specific amount.The macro value should be guided by the value of justice.The calculation should be detailed to exclude the deduction of the necessary expenses and labor compensation of the wrongdoers,and focus on the size of the cause.Therefore,in principle,the compensation for illegal profit is based on the total profit of the wrongful person.In some cases,after fully considering many factors,it can be allowed to retain part of the profit in order to pursue the fairness and flexibility of the system.