Study On Theory And Application Of Punitive Damages

The system of punitive damages has experienced tremendous development in China’s legal system in2009. First, the Article96, paragraph2of "Food Safety Law of the People’s Republic of China", which adopted on February28provided for the ten times compensation system; followed by the Article47of "Tort Law of the People’s Republic of China", which adopted on December26prescribes the punitive damages in product liability. As well as, the provisions of Article49of "Law of the People’s Republic of China on the Protection of Consumers’ Rights and Interests",which adopted on October31,1993, the Article8-9of "Interpretation of the Supreme People’s Court on Issues Concerning the Application of Law for the Trial of Cases of Dispute over Sales Contracts of commercial residential building", which adopted on March24,2003, and the provisions of Article82,85,87of "Labor Contract Law", also have some rules of punitive damages. Consequently, nowadays the article anthology of China’s punitive damages system is beginning to take form around the economic law, social law and civil special law. Punitive damages system is a legal system of common law countries. Therefore the introduction of the punitive damages system means the articles anthology has become a different kind of landscape in our statute law system.It caused a fierce debate over the effect of this "mash-up system" around academic circle and practical world. This dissertation mainly focuses on six aspects as the principal axis to study on punitive damages system as follows:origins, nature, functions, scope and amount of money. This thesis use contextual analysis and system analysis as research methods.Since ancient law has the shadow of punitive damages, the true sense of the modern punitive damages first appeared in British law, and then carried forward by American law. There is no differentiation between public law and private law in common law system, while the civil law makes a clear distinction. Hence, civil law countries adhere to oppose lead punitive damages which have sanctions nature into civil law. For this reason, the civil law countries neither adopt punitive damages provisions in legislation, nor recognize and enforce the punitive damages judgment from common law countries. Nevertheless, in recent years, with the trend of globalization and harmonize of two law systems, civil law countries loosened their opposite opinion of punitive damages.At the present time, there are rich results of the function of punitive damages in academic circles. The function of punitive damages is compartmentalized into native function and derivative function. In the mean time, For various features of the punitive damages, we do not have to do the treatment of essentialism, that is to say, which function is considered more important or priority, while others relatively minor, but should adopt a pragmatic attitude, that is, proceeding from truth, to select which function to focus on. Like the water glass, the original function is used to drink water, but in special circumstances, for the paperweight, used as a weapon against an enemy, and why not? Since China is the emerging market economy country, some behavior of producing fake and shoddy products is endless, while the control of public authority is weak, it’s apparently realistic reasonable to encourage private enforcement with the punitive damages system against wrongful acts in this time. In other words, punitive damages may "take private interest to achieve incentive, reduce the burden on the implementation of the national control to improve the control effect."Although punitive damages provisions into private law, it can not be characterized as private law system simply, because of its sanctioning function, which achieves control effects."States whether to use private law for more efficient fulfillment of payment obligations, or mitigate the treasury burden to evade congressional oversight ’fled to’ the private law, legal entity of private law and contractual mechanisms are likely to become a national indirect administrative tool." Therefore, for punitive damages, the more accurate characterization is of a public nature of private law norms, that is, by means of private law norms to achieve the purpose of public control. This wave of public law, private law and private law, public law, public law and private law leveraging each other often. Under the bandwagon of privatization of public law and publicization of private law, public law and private law using the power of each other is a matter of frequent occurrence. We cannot simply compare the punitive damages system with the common compensation regulation base on its own character. We may also need place punitive damages system carefully since it’s heterogeneity in private law. At the same time, according to the punitive damages system has both features of public law and private law, it derived from a number of legal application of fairness and justice issues, such as liability concurrence, procedure guarantee, burden of proof and standard of proof, inaction of administrative organ, double punishment and so on. These issues have not been discussed in detail in the law circle of our country, the paper made a preliminary exploration.The punitive damages attached to ordinary homogeneity compensation regulation, as a result the overlap between core elements of the punitive damages and general civil compensation, namely, if it constitute the punitive damages that it also constitute general civil compensation at the same time. However, it should be divided appropriately, that is the elements of punitive damages are more stringent than the elements in general civil compensation. Specifically, it requires intent and gross negligence in the subjective aspect, and also demands the behavior causes serious consequences in the objective side.Under the present applicable law in China, existing punitive damages provisions are distributed in several ways, this greatly limits the discretion of judges which also reflects cautious attitude of legislators。Whereas, owing to punitive damages prescribed in different law by the legislation, and it behave complexity and diversity in the real life, consequently it appeared the concurrence of liability issues. Private autonomy is the golden rule of civil law, thereby, what responsibility form more suitable can be chosen by aggrieved party, instead of be chosen by the law enforcement officer or judge.Punitive damages ultimately reflected on money. However, either regulate a specific amount or give a ambiguous range, legislator has been facing a conundrum that how to set a compatible fine standard of Punitive damage. We need to know is, whether the fine standard works or not, the standard of determine the fine is to see whether it can properly perform its function. In this standard, amount of fine of the punitive compensation cannot provide a specify number, even should not be provided for multiples, but it should be elasticity. In order to avoid the space of legal interpretation spread too large, some considered factors are required to control that. From a macro perspective, the amount of punitive damages may be determined from the national unity of legal system, the level of social and economic development, public policy, international reference. From the specific case of a micro perspective, it may be determined from the social harmfulness of illegal acts, subjective attitude of the perpetrator, The extent of the victims’damage, other penalties for the illegal acts, Victim expenditure for the purpose of litigation costs, as well as other evidence supporting situation which can decide the amount of money. In this way, the punitive damages pattern can be provided some local legislation power under the premise of confers in national standards, simultaneous removal of multiple systems, uncertain limit. In the form of legislation can take the form of special law, in addition, it still can supplement with Collective litigation mechanisms when there are mass torts appeared.