Reflection And Reconstruction Of Punitive Damages

Punitive damages is the damages which courts legally order to thevictim according to the offender’s evil motive and actual damages, inorder to punish the offender for his outrageous conduct and deter theothers like him from similar conduct in the future, and force the offenderto pay the victim for the damages which beyond the compensatorydamages. The features of the punitive damages contain deterrence,punishment, implied compensatory, incentives, private prosecution ofimplementation and supplementary for the law enforcement. In China,punitive damages is a kind of civil liability. The punitive damagesliability takes priority over the criminal liability and the administrativeliability. Tort Law of People’s Republic of China adopts an attitude ofcautious acceptance and limited recognition on punitive damages, andonly the product liability covers the punitive damages, which is in anarrow range and under strict conditions. The newly revised Law ofPeople’s Republic of China on Protecting Consumers’ Right and Interestsis generally in accordance with the Tort Law of People’s Republic ofChina, and specializes the system of punitive damages in the field ofconsumer protection. Punitive damages has been acknowledged in China and covered bylaw, but there are still some defects, which may cause a range ofproblems. Punitive damages in contract field is limited to the specificcircumstance in Law of People’s Republic of China on ProtectingConsumers’ Right and Interests and relevant judicial explanations.Punitive damages in tort field is limited to a narrow scope of productliability. The absence of punitive damages in other fields makes theseareas lack of a highly effective safeguards. The applicable conditions forpunitive damages in tort fields are too harsh, which demands cause deathor serious damages to health as a consequence. The offender who isenough to cause serious damages to health will be released frompunitive damages. The understanding of knowingly in civil lawacademia is so restricted that the offender who make the gross negligencewill escape from the punitive damages. The vague of valuing the punitivedamages amount, the lack of clear method of calculation and referencefactors will lead to the judicial disunity. Although the newly revised Lawof People’s Republic of China on Protecting Consumers’ Rights andInterests provides the calculation method of punitive damages, theexpression is not clear enough. The relationship between punitivedamages and spiritual damages, the liability body and responsibilitymeans, the ownership of punitive damages, as well as the coordination ofthe system of punitive damages, are all need to be explicit and improved.In order to apply the regime of punitive damages reasonably, it is need tobe reconstructed in China.The reconstruction of punitive damages involves the applicablearea of punitive damages, applicable conditions, the determination andownership of amount, and attribution among the subjects of obligations.Two factors contribute to the restore of punitive damages’applicable area.First of all, while the punitive damages is confined to the product liability, we should expand the scope of products to embrace the primaryagricultural products and real estate. The constructor of real estate will beimposed on punitive damages, if he knows the defect of real estate andthe defect causes death or serious health damages; secondly, break therestrictions of punitive damages which only apply to the product liabilityand several contract area, extend the applicable area of punitive damages.In contract area, punitive damages should be applied to all types ofdeliberate breaching of contract. In tort area, punitive damages should beexpanded to all the mass tort cases. When it comes to bankruptcy,punitive damages is a kind of ordinary creditor’s rights, which have nopriority in bankruptcy cases.The restore of the applicable conditions and amount for punitivedamages involves both areas of tort and breach of contract. Theapplication of punitive damages for breach of contract should be limitedto gain-based deliberate breaching, and the amount of punitive damagesfor breach of contract should be determined by the judge. In tort field,the standard of knowingly should be summarized and listed by law,and gross negligence should be covered by punitive damages.Meanwhile, the offender who is enough to cause serious damages tohealth should also be punished. The subjects of rights for punitivedamages should contain industrial injury victims, subjects ofpublic-welfare litigation and providers of parts and raw materials. It is notnecessary for the victim to claim the remedy respectively when there areseveral offenders needed to be punished. In this case, the amount ofpunitive damages should be appropriately increased, and there should bejoint liability among the offenders on the purpose of punishment anddeterrence. The amount of punitive damages in tort field should be basedon the compensation damages, and no more than2times of compensationdamages could be ordered. Compensatory damages includes spiritual damages and personal injury damages, while the property loss of thevictim is not included. When it comes to the discretionary punitivedamages which is described as enough to cause serious damages tohealth, the reference factors should be regulated by law. The minimumamount of punitive damages should be regulated by law to realize thepurpose of punishment and deterrence. As a principle punitive damagesshould belong to victims, while it will belong to foundation in thesituation of public-welfare litigation.