Research On The Restitution Of Profits From Tort

The restitution of profits from tort provided in Article 20 of the Tort Law of PRC is an independent claim of tort in response to "gain-based torts",rather than the damages for tort,restitution of unjust enrichment or illegal negotiorum gestio.The restitution of profits from tort is different from these systems in terms of standardization purpose,scope of application and constituent elements.The legitimacy of the restitution of profits from tort is derived from the general legal principle of "no one shall profit from their own illegal acts" and the preventive function of tort law,which is derived from the practical need to protect and remedy rights and has the rationality from the perspective of law and economics.The application of the restitution of profits from tort is based on the fact that the actor wrongfully infringes on the legal rights and interests of others and thus gains profits,but it is not necessary to cause actual losses to the right holder.The restitution of profits from tort is more rigorous than the damages for tort.In order to avoid the actor being overburdened,it shall take the actor’s intentional or gross negligence as the subjective element.With regard to the scope of application for the restitution of profits from tort,considering the equal protection of rights,the realization of prevention function,and the convergence of systems,the scope of application shall not be limited to cases of infringement of personal rights and interests.In the process of compiling the civil code,we can learn the experience from foreign law and extend it to the situation of infringement of property rights.At the same time,in order to achieve adequate and thorough relief to the right holder,the right holder shall be allowed to choose freely when the right to claim the restitution of profits from tort,compensation for damages and the unjust enrichment are competing.When calculating the profit from tort,we should proceed from the basis of the legitimacy of the restitution of profits from tort,not only to achieve the purpose of preventing infringement but also to prevent the right holder from gaining improper profits.Therefore,the scope of profit to be returned should be defined as the net profit attributed to tort that the infringer gained.The determination of profit from torts shall follow subjective and specific principles,supplemented by the objective value of the infringed rights and interests.The infringer shall be allowed to deduct the corresponding cost and share the profit.But the scope of deductible costs must be strictly limited.Only variable costs that are directly related to infringement profits can be deducted.As for indirect costs that cannot be directly identified or directly attributed to infringements,such as the enterprise administrative expenses for maintaining the normal operation,they shall not be allowed to deduct.When determining whether a specific cost can be deducted,the court cannot stick to the classification of accounting,but should make a substantive determination in conjunction with the specific case to prevent the infringer from avoiding compensation by changing accounting subjects and other means.In terms of profit sharing,the market analysis method can be used to analyze the contribution proportion of the infringed rights and interests to the profit from the perspective of the impact of the infringed rights and interests on the purchase intention of consumers,and determine the sharing proportion based on the impact degree of the infringed rights and interests on the purchase intention of consumers.With regard to the distribution of the burden of proof,we can take the means of inversion of the burden of proof to reduce the burden of proof for the obligee.The obligee only needs to bear the burden of proof for the gross profit that the infringer gained due to the infringement,and the infringer shall prove the deductible cost and the apportionment ratio.