Summary of The Jurisprudence Foundation for Disgorgement

Disgorgement of profits can be applied to compulsory commercialization of the personality right. It is not clear about its jurisprudence foundation, several doctrines emerge thereof. Among the doctrines of damages, unjust enrichment, negotiorum gestiomeant and the independence theory, each doctrine has its advantage as well as disadvantage. No matter choosing what doctrine, we have to face the problem related to the orientation of a law system. This paper applies the corrective justice to analysis, differentiating the concept of damage and loss, and takes an advantage of the transform of the damage theory from differenzhypothese to the theory of concrete and normative one. After that, this paper proposes that in the compulsory commercialization of the personality right, the remedy should not only focus on loss, but also other damages and the function of it should not be restricted to compensation, but expand to deterrence and relieving the right much sufficiently. The modern development of the doctrine of damages makes good explanatory notes of corrective justice and builds a solid foundation for disgorgement. At the same time, the latter strengthens the modern spirits of the former. The deduction of costs rule and the apportionment rule should be applied to disgorgement. The restriction of the order of disgorgement is unreasonable. Disgorgement and the license fee can not be applied at the same time.