Study On Profit Return Rules Of Personal Infringement

Article 1182 of the Chinese Civil Code inherits and develops the rule of return of profit from personal infringement stipulated in Article 20 of the Tort Liability Law,and no longer regards "it is difficult to determine the loss of the infringed" as the prerequisite for the infringed to claim compensation from the interests of the infringed.In essence,it cancels the restriction on the order of application between the actual loss suffered by the infringed and the interest earned by the infringed and gives the infringed the right to choose.The revision of this article timely responds to the needs of judicial practice and further improves the rules of profit return of personal infringement,which is of great significance.However,there are some problems in the judicial practice,such as unclear basis of claim right,difficulty in determining and proving the amount of profit return,and unspecific criteria for judges to decide.First of all,the academic community has not reached a consensus on the basis of the claim right of the profit return rule of personal infringement.By sorting out different theories and viewpoints,the author holds that there are certain defects in the theory of damages,unjust enrichment and illegal management without cause,so defining the basis of the claim right of personal infringement profit return rule as independent claim is more consistent with its constitutive characteristics of both damages and unjust enrichment elements.Secondly,the recognition of the amount of profit return needs to be clear.The amount of profit return shall be the direct benefit obtained by the infringer for the infringement plus the indirect benefit saved during the infringement,and then the cost of the infringement shall be deducted.In the calculation of the specific amount of profit return,the direct net profit of the infringer shall be calculated on the basis of the total deduction method,and the indirect profit of the infringer shall be calculated by means of the proposed license fee or the similar market standard.In addition,adjust the proof method of the amount of profit return,learn from the evidence disclosure system in the field of intellectual property,request the infringer to disclose its accounting books or capital flow and other relevant information,and then the infringed can prove the specific amount of the interests of the infringer due to the infringement.Thus,the infringer can prove the amount of the cost that needs to be deducted from the benefit and the specific amount of the benefit that does not belong to the tort.Finally,standardize the specific application of the judge’s discretion.It is clear that the object of the judge’s discretion is the actual loss of the infringed and the interest of the infringed.The loss of personal rights and interests of the infringed is clearly distinguished from the necessary expenses of rights protection expenses,and the scope of the judge’s discretion is limited to the loss of personal rights and interests.The reference factors determined by the judge should be clarified,including the normative purpose of profit return rules for personal infringement,the value of the personal rights and interests of the infringed,the interests of the infringed,the infringed’s infringement and the proposed licensing fee.