Research Of The Punitive Damages System In China

Chapter Ⅰ:Introduction. China belongs to different legal system comparing to the birthplace of the punitive damages system. In the countries of Anglo American law system with the case law being the legal source, the punitive damages system comes from concrete judicial precedent and develops in judicial practice gradually. China belongs to the Civil Law country that considers the written law to be the principal legal sources and emphasizes both scientific and systematic of the system. As an external system, the localized research of the punitive damages is insufficient in China. A legal system with vitality should establish on ripe theoretical foundation. Whether or not the theoretical research has been sufficient is the key to develop the punitive damages system in China.Chapter Ⅱ:The Introduction of Punitive Damages I:The Fundamental Theory of The Punitive Damages. The "Punitive damages" in this article refers to the punitive damages under the contexts of "Punitive Damages" which essentially imply that the amount of compensation decided by the court exceeds the actual amount by damage with its purpose to deter and control illegal acts. The features:(1) The main function is to punish and control illegal acts;(2) Lots of factors should be considered when counting the amount of the punitive damages;(3) The limitation of application scope.The basic theoretical issues of the punitive damages include nature, function and value. The punitive damages is an external factor in private law which increases social interests on the basis of traditional compensatory damages and break through the traditional strict boundary between public and private law. It fills up the functional defect of remedy compensation and controls the illegal acts. It plays an important role in safeguarding the social order.The functions of the punitive damages include two aspects, one is the function for the infringer, and the other one is the function for the injured party. The functions for the infringer include two aspects:(1) Punishment;(2) Deterrence. The function for the injured party includes:(1) Conciliation;(2) Encouragement. The value of the punitive damages includes:(1) The value of order;(2) The value of justice;(3) The value of freedom;(4) The value of equality.The institutional factors of the punitive damages mainly include:illegal acts of the injuring party, subjective elements and the amount of compensation and etc.Chapter III:The Introduction of Punitive Damages Ⅱ:The Development of The Punitive Damages. From the international point of view, the features of the punitive damages in the ancient society include:(1) solving the criminal liability by means of civil way.(2) Be aware of the function on deterrence of the punitive damages. In the middle Ages, the punitive damages system develops in different routes in European countries because of different political and economic background. On one side, the United Kingdom inherits and develops the system, on the other side, the continental countries in Europe abandons the system. The punitive damages system develops fully at the Anglo-American countries. In the modern law of the United Kingdom, the punitive damages is distinguished from the non-property compensation which reelects the idea that the defendant should compensate to the injured party by the way to be condemned. The idea for the natural of the aggravating compensation of the United Kingdom is still remedy when the compensation is insufficient and the damages need to be making up. The punitive damages system in the United States that develops from the common law is a perfect model for all the other countries in the world with its own characters.The legislation of the civil law countries has been enslaved to the old idea of compensation and restoration. Although they emphasize the prevention function of the civil liability, they actualize it by means of impartial compensation. Despite of the essential attitude of these countries against the punitive damages, to accept it secretly has become a new tendency.Chapter Ⅳ:The Legitimacy of the punitive damages in Chinese civil law. The main theoretical ideas about the punishment and the legitimacy of the punitive damages include prevention, justice, retribution, deterrence and punishment. As for China, we could argue the legitimacy of the punitive damages from the following aspects:the punitive damages and the standard of right, the strict separation between public and private law create adjusted vacuum, the limitation on controlling intentional injury acts by equalized compensation liability. The creation and application of the punitive damages in China is based on the realties that reflect the negative attitude of the people about the disorder acts in market, the wish for an honest society, and the will for stricter punishment to the illegal acts.Chapter:The Orientation of the Punitive Damages System in China. A completed civil liability system that is the essential guarantee to protect the civil right is the vitality of modern civil law. The position of the punitive damages liability is embarrassed in the civil liability system in China as to current legislation system, which is insufficient obviously. There is no definition about the punitive damages in any law in China today. Necessary legislative authority is absent when the judges decide the amount of the punitive damages in judicial practice. The current civil liability system of China should inherit and develop the legislative tradition of the Civil law countries. In order to adapt to the requirement, the punitive damages should transfer from the simple person’s interests to a whole society’s interests; from guarantee priority for the movement freedom to the safeguarding of the right for the vulnerable groups y; from limited scope only filling up the damages to concern both punishment and prevention. With the rapid development of the market economy, more and more acts that disorder the market appears; despite of the traditional criminal law and administrative law, we should not ignore the civil law. The punitive damages system from the other countries corresponds to the requirement. The system is the proof of the prevention function both in the trade field by preventing the fraud and in the product field (including foods) by preventing infringement. The punitive damage emphasizes the prevention function, which is a necessary selection for China.Compare the punitive damages to the civil liability system for property damage of China. The differences between the punitive damages and the remedy compensation:(1) Compensation principle;(2) Compensation function;(3) Calculation of the amount. The connections between the punitive damages and the punitive penalty:(1) They both belong to the civil liability category and the civil liability is between equal parties;(2) They both have punishment, which is the method to punish the illegal parties. The differences:(1) Different creative ground;(2) Different target;(3) Different subjective condition.The connection between the punitive damages and the mental damage compensation is that they both have conciliation and punishment, and they have similar subject. The differences lie in the subjective condition, application scope, compensation object, systematic purpose, systematic function, the function of the punitive damages is pluralistic such as deterrence and encouragement, the mental damage compensation make up the injured person with property for his mental damage, the former one pursue the goal of social order, the later one pursue the goal of individual justice; amount in calculating depending upon different rules. The punitive damages cannot replace the mental damage compensation; on the contrary, they can be used together sometimes when necessary.Chapter VI:Establishment and Introspection of the Punitive Damages System in China. The punitive damages in our country including,"Law of the People’s Republic of China on Protection of Consumer Rights and Interests" Article55,"Contract Law of the People’s Republic of China" Article113, clause2,"Food Safety Law of the People’s Republic of China" Article96, clause2,"Tort Law of the People’s Republic of China" Article47,"Tourism Law of the People’s Republic of China" Article70, clause1,"Trademark Law of the People’s Republic of China" Article63, clause1. From the beginning of its creation to today, the punitive damages system develop hand by hand with the social reality of China. At present, there is no general provision in the legislation in China. However, the rules in some special regulations reflect the aspiration to making the law of the punitive damages system.In the transformation period of society in China, the realistic foundations to establish the punitive damages system lie in the following facts:the needs of system supplement become urgent, strengthen of the legal conscious of the people, the urgent needs to absorb and refer to the other countries’ legislation, the needs to build a integrity society.The development path of the punitive damages in our country mainly reflects:from the realm of contract law to the tort law; from the invisible rule to the Identified rule; the increase the amount of compensation; the expansion of the compensation field; from the purely objective element to the subjective element and objective elements in parallel.The deficiencies of the punitive damages of China include the following aspects:(1) Narrow and limited application scope;(2) The design of the compensation payment is unreasonable and random;(3) The composing elements are hard to grasp;(4) The lack of a general provision. Chapter VII:Optional Method of the Evolution for the Punitive Damages in China. At the modern times with the development of the science and technology, security should become the basic value of civil law because it has intimate relationship on preventing the damages. The civil law should show its solicitude for humanism and the legislation policy caring for the weak should be persisted in the future for a certain periods. In the meantime, the considering factors of the general provisions of the punitive damages system in china should comprise the principles of the punitive damages, the right of claim of the punitive damages, the application scope of the punitive damages, the composing elements and the amounts. Furthermore, encouragement should be an important factor in system design.As an important method to suppress the unlawful acts, the punitive damages system gives negative evaluation to the illegal facts on one side, and gives positive evaluation to the obligee for his claim of the right on the other side since the purpose of "punishment" establishing the punitive damages could not achieve without the participating of the obligee. The effect of the system depends upon the obligee with his initiative acts by safeguarding his legal right. The punitive damages system should be regarded as an encouraging model that could influence the acts of the people in the future. The right of the claim of punitive damages is clarified. The right of the claim of punitive damages breaks through the former legal right system in the civil law system by giving the weak the right of the claim of punitive damages, which could promote the position of the weak and revert to the original value of the civil law. The punitive damages system could expand further on the ground of the present basis. That is to say, it could be applied into new fields such as large-scale infringement, infringement of the right of personality on Internet, and the infringement in intellectual property.Chapter Ⅶ:Conclusion. The punitive damages reflect the requirement about the transitional position of the civil subject under market economy and the rule of law idea of beforehand prevention in modern society.The function of the punitive damages is not only for deterrence and punishment, but also for the encouragement to the parties. From the realities of China, the analysis of the legitimacy of the punitive damages should focus on the existent legal system and its limitation in China, as well as the urgent need to break though the remedy compensation liability on the ground of the social reality to interpret further the traditional ideas about the deterrence and punishment. The relationship between the punitive damages and the present civil liability system is not only a theoretical issue, but also a practical issue. There is close connection between the civil liability system and the punitive damages system. However, we should clarify them within their own scope. After reviewing the existent punitive damages system of China, we find out that the main issues lie in the narrow scope, unreasonable design of the compensation and difficulty in grasping the composing elements. Therefore, the evolution way of the punitive damages system to choose in China could take into considered the following ways:on the one hand, put into general provision when designing the system which consider encouragement as main factor according to the reality of China, and rule clearly the right of claim of punitive damages, on the other hand, expand the application scope for the punitive damages, which means that the punitive damages could be applied into new fields such as large scale infringement, infringement of the right of personality on internet, and the infringement in intellectual property.