A Study On Recognition And Enforcement Of Foreign Punitive Damages Judgments

Punitive damages are a form of liability derived from common law system.The modern punitive damages system was born in the United Kingdom,and was widely accepted by the common law system countries.The system of compensation for damages in civil law countries insists on the principle of “compensation for damage” and “Prohibition of profit”.Punitive damage which is far beyond the function of filling the damage have always been regarded as heterogeneous.The conflict of substantive law of punitive damages in the two legal systems leads to the failure of recognition and enforcement of foreign punitive damages.Recently,with the development of economic globalization and legal assimilation,the implementation of foreign punitive damages judgments began to change.Under this background,this paper makes a comprehensive and systematic study on the recognition and enforcement of foreign punitive damages.Based on a survey of the basic problems of the recognition and enforcement of punitive damages in foreign countries,and the theory of private international law,such as the public order,dépe?age,the principle of proportionality,the conflict of laws and the assimilation of law,the author compares and analyzes the practical difficulties and theoretical disputes of the recognition and enforcement of foreign punitive damages in the above-mentioned two legal systems,before summarizes the conflicts and differences of the two legal systems,and proposes a preliminary plan for the international community to coordinate the conflict.Suggestions for China's recognition and enforcement of foreign punitive damages judgment is provided,too The thesis follows the basic train of thought of putting forward the problem,analyzing the problem and solving the problem.Methods of case analysis,comparative analysis and value analysis are adopted.Firstly,the paper studies the basic problems of the recognition and enforcement of foreign punitive damages.Due to its uniqueness,the recognition and enforcement of foreign punitive damage judgment faces both practical difficulties and theoretical disputes.Foreign punitive damage is a special kind of judgment.Punitive damages system mainly exists in common law countries.The expensive fine,with the function of punishment and deterrence,makes punitive damage judgment both civil and criminal in nature,which is different from the general damage compensation system.In addition to the basic rules governing the recognition and enforcement of foreign judgments,the recognition and enforcement of such judgments shall be subject to the application of the relevant special rules.It is difficult to recognize and enforce foreign punitive damages.In addition to the difficulty of recognition and enforcement of foreign judgments,the principle of public order is the biggest obstacle.Foreign punitive damages judgments are generally refused in all nations for the excuse of disobeying substantive or procedural public order.At the same time,there are a few countries who refuse to recognize and enforce the civil judgment of foreign punitive damages.The theoretical disputes on the recognition and enforcement of foreign punitive damages include the constitutionality of the punitive damages system,the dispute over the legal nature of the civil penalty of foreign punitive damages,and the theoretical controversy over the recognition and enforcement of punitive damages.Secondly,the thesis discusses the practice and related theoretical problems of the major continental law countries.A comprehensive study of the theory and practice of the main continental law countries is conducted from three aspects,namely,analysis of the related theory in the transformation of the traditional practice,the refusal to sanction foreign punitive damages judgment,the change to limited sanction of foreign punitive damages judgment practice and an analysis of related theories.Civil law countries traditionally hold a complete denial of recognition and enforcement of foreign punitive damages.Japan,Switzerland and France denied civil foreign punitive damages judgment;Italy and Poland admit the violation of public order refused;Germany,Italy and Japan refused to admit and execute on the excuse that foreign punitive damages judgment contradicts with the principle of indemnity.Recently,the mainland legal system countries' position gradually changed to limited recognition.Some countries in the infringement of personality rights and anti employment discrimination and the protection of intellectual property rights field conduct limited acceptance of punitive damages system;Germany and South Korea takes its own entity oriented dépe?age method of recognition and enforcement of foreign punitive damages judgment;Switzerland and Spain,because their public order is gradually weakening,have once accepted the full recognition and enforcement of foreign punitive damages judgment.France introduced the principle of proportionality in the Fountaine case,breaking through the historical dilemma of recognition and enforcement.Instead,study on the change of civil law system from complete denial to limited recognition,which can be traced from the generation and evolution of related theory.The uncertainty of the connotation of the public order contributed to the excessive reliance on public order,but the abuse of public order review will cause the boycott;dépe?age applicable while changing the traditional way of recognition and enforcement,it is difficult to coordinate with the discretion to prohibit the substantive examination principle and judge;the application of the principle of proportionality makes a breakthrough in the history of the dilemma in the ideas and methods,but how to determine between punitive damages and compensation ratio remains a problem.Thirdly,the thesis analyzes the practice and related theoretical problems of the common law system countries.By comparing the legislation and practice of punitive damages system in the main countries of Anglo American law system,the thesis analyzes the difference between the mutual recognition and enforcement of punitive damages judgment practice in various countries,and explains the theoretical problems related to effects of the recognition and enforcement of judgments.The scopes of application of punitive damages system in the United States,Britain,Australia,Canada and New Zealand are not consistent,the different countries have different ways to identify or curb punitive damages,the amount of punitive damages sentenced by different juries or judges varies a lot.The United States has the most extensive range of punitive damages,the highest amount of punitive damages and the highest frequency,forming a confrontation against other countries of common law system.Major common law system countries basically accept the recognition and enforcement of foreign punitive damages judgment.In practice,the United Kingdom and the United States apply the dépe?age method to the limited recognition of foreign punitive damages;Australia and Canada fully affirmed the high foreign punitive damages judgments in certain case.In recent years,the “Pengci” punitive damage litigation is a unique phenomenon in common law system countries.Some backward countries file malicious prosecutions in order to grab huge punitive damages,,which violates the principle of procedural justice,eventually completely rejected by the United States and Canada and other countries.Based on the study of the recognition and enforcement of foreign punitive damages in common law countries,the main problems affecting the development of practice are as follows: First,the law tends to promote the free flow of punitive damages;Second,the principle of procedural justice regulates pengci-style punitive damages litigation behavior;Third,the pros and cons of the segmentation method in the recognition and enforcement of foreign punitive damages judgments;Fourthly,the public order in recognition and enforcement of foreign punitive damages faces a certain limit.Fourthly,this paper examines the conflict between the two legal systems and the preliminary plan of international coordination.Through the comparison of the two legal recognition and enforcement of foreign punitive damages judgment practice and related theory,this paper examines the process of creation and the main content of Hague Convention on the provision of punitive damages,and makes a detailed interpretation of the related core issues-,finally it explains the influence of punitive damages provisions,and puts forward suggestions for improvement in view of existing problems.There are many differences between the two legal systems on the recognition and enforcement of punitive damages.On the identification of the nature of foreign punitive damages judgment,the civil law countries gradually turned to positive from negative,while common law countries generally hold a positive attitude;on the standpoint of the recognition and enforcement of foreign punitive damage judgments s,civil law countries turn from complete refusal to a limited acceptance,while common law countries basically accept and enforce the foreign judgment;on the specific operation of punitive damages judgment,the segmentation methods,the reliance on public order and the principle of proportionality vary in different countries.The international community has adopted a preliminary solution to the conflict between the two legal systems.It is stipulated in Article 33 of “Civil jurisdiction and judgments of the draft Convention” that the judgment-receiving state should at least recognize and enforce the punitive damage judgment which is similar or comparable to the punitive fine possibly made by the requesting state.Applicable segmentation method for recognition and enforcement of foreign punitive damages judgment is suggested in “Convention on choice of court agreement”,“The Ninth Convention” would recognize and enforce foreign judgment by means of segmentation.The international community,in its preliminary scheme,chiefly coordinates on the compensatory compensation,non-compensatory damages,and excessive punitive damages.All countries agreed on compensatory damages,but remain controversial on the definition of non-compensatory damages;which makes it difficult for countries to make a consensus.As for excessive punitive damages,the basic attitude is denial of recognition and enforcement.The preliminary plan of the international community has different effects on different countries.The United States began by setting the highest limit or multiple regulations limit on the punitive damages,and seek the “choice of court agreement amendment to Article eleventh of the Convention”,and the impact on other common law countries and civil law countries are relatively modest".In order to coordinate the two legal systems recognition and enforcement of foreign punitive damages judgment conflict,reasonable judgment from the EU free flow mechanism can be a good learning material,and the requesting state court can strengthen the punitive compensation restrictions to break the dilemma of the recognition and enforcement of foreign punitive damages judgment.Finally,the paper makes a prospect of the recognition and enforcement of foreign punitive damages in china.Based on the previous research,this thesis analyzes possible difficulties of China's recognition and enforcement of foreign punitive damages judgment based on China's national conditions,and from both the domestic and the international level,this thesis puts forward suggestions for future China's recognition and enforcement of foreign punitive damages judgment.Difficulties OF China's recognition and enforcement of foreign punitive damages judgment include: limited countries which have already made treaties with China,infeasibility of the mutual recognition and enforcement of foreign judgments,difficulty of recognition of enforcement of foreign judgment.More importantly,in scope,conditions,status,function,and the amount and frequency of sentence,differences exist on the corresponding system of punitive compensation system in our country and that of Anglo American law system,Coupled with China's lack of special mechanism of foreign punitive damages judgment recognition and enforcement.There are a lot of obstacles to the acceptance and enforcement of foreign punitive damages judgment.In the aspect of domestic law,we can draw lessons from the practical experience of Taiwan,and recognize the foreign punitive damages in the scope of the substantive law.In view of the inapplicability and untimeliness of complete refusal to enforcement of foreign judgment it is concluded that although there are difficulties,segmentation recognition and execution mode has certain rationality in China.But in the specific implementation path,limited recognition and enforcement of foreign punitive damages is suggested.In international law proposals,article 11 of “Convention on choice of court agreement” and article 9 of “draft Convention on the recognition don't contradict with the laws and regulations of China,which enable China to accept the foreign punitive damages judgment by segmentation method.With the public order as a safety valve,China does not have to make special arrangements for the system while being added to the Treaty.Based on the investigation of “foreign punitive damages judgment recognition and enforcement”,further information can be concluded as follows: first,all states move towards universal affirmation of foreign punitive damages civil judgment;secondly,the substantive-law-oriented limited recognition and enforcement of foreign punitive damages judgment is reasonable;third,the preliminary plan out of coordination among the international community contribute to the recognition and enforcement of foreign punitive damages judgment.In a word,in the development of economic globalization and legal assimilation,we need to establish an open foreign recognition and enforcement mechanism to promote the free flow of judgment.All countries should,with respect to foreign judgment,improve their relevant laws and regulations in the national level,adopt limited acceptance and enforcement of foreign punitive which is tolerable by their own substantive law.