The Legal Responsibility Research Of Gain-based Tort

Gain-based tort is a special kind of tort,because it produces the result of profit,which forms a compound tort with the result of traditional damage.The result of tort includes not only the loss of the infringed,but also the benefit of the infringed.In the current world,there is no law of any country to regulate it independently,and there is no universal theory and legislative paradigm in the world.As the constituent elements of beneficial torts have changed,the roles and relationships between the elements have changed.It is obvious that filling rules and standards based on traditional tort law can no longer solve the problems faced by beneficial torts.After all,filling rules only focus on the infringement result of damage,and do not evaluate the benefits.At present,the mainstream practice at home and abroad is to take benefit as the calculation method of damage result,which itself is a breakthrough to the civil filling principle,after all,the benefit often exceeds the actual loss.However,this approach obviously ignores the property attribute of many rights.Profits often come from the property attribute of rights,while the damage itself does not generate profits.If the two are confused,one of them will be lost.Therefore,beneficial torts cannot simply be based on the traditional principle of damages.Only by analyzing its constituent elements one by one and re-examining the misunderstandings in theory and causes of problems in practice,can we straighten out the imputation method of legal liability in this kind of torts.In view of this,in order to clarify the basic jurisprudence of beneficial torts,to analyze the legitimacy of tort liability,to give full play to the guidance of theory to practice,to construct the legal rules of beneficial torts legal liability,to put forward reasonable suggestions to solve the current judicial dilemma,choose this topic for research.The text of this article includes four parts: the first part puts forward the questions,including the issues facing the principle of damage compensation,the legislative situation and the judicial practice dilemma.The second part analyzes the beneficial torts,including the concept,characteristics,components and foreign judicial practice of the beneficial torts.The third part examines the beneficial tort system in our country,including the theoretical part: the theoretical basis difference,benefit nature difference,liability theory difference and legal liability difference;Judicial practice part: the basis of the right to claim,the burden of proof and legal responsibility identification.The fourth part is based on the problems analyzed in the third part,from the theory to the assumption of judicial practice,including the theoretical part: establish the basic theory of imputation;Insist the right value theory as the legitimate basis of benefit return;Dualism of legal liability;Judicial practice:determination of the basis and scope of claims for damages,rules of evidence advocate full use of evidence disclosure,evidence preservation,judicial accounting system and right value evaluation system,legal liability adhere to the dualism of damages and benefit compensation,but should strictly interpret damages and benefits,for mental damage compensation and punitive compensation should be conditional application.