On The Exemplary Damage System

The generation and development of exemplary damage system is not contradictory to the traditional compensatory damage system; it is just an exceptional damage system developed out of a damage system. It is multi-functional, such as sufficient compensation of loss suffered by the injured party, punishing the infringer for his wrongful conduct, and containment of illegal act. Therefore, in order to perfect the exemplary damage system of China, the experience of British and American laws must be drawn on, based on the fact in China. This discusses analyzes the features, reasonableness and system value of exemplary damage system, analyzes the exemplary damage system in the current legislation of China, and inquires into the necessity and feasibility of perfection of exemplary damage system in China, thus, it sets forth the proposition to perfect the exemplary damage system in China. This thesis consists of four parts. Part one mainly briefly introduces the characters , reasonableness and value of exemplary damage system. (I) It demonstrates the characters of exemplary damage and sets forth the concept and characters of exemplary damage and its relation with the compensatory damage system, and thus it generalizes that the goals and functions of exemplary damage are of great varieties, and can make up the insufficient application of the compensatory damage system. The amount and the maximum amount limitation of exemplary damage is stipulated directly by laws and regulations. The premise of exemplary damage is existence of compensation; only when the essentials for compensation exists, can exemplary damage be claimed for, i.e. the injured party basically cannot separately claim for exemplary damage. The exemplary damage amount has a certain proportional relation with compensatory damage, and they cannot be segregated. (II) It specifically analyzes the reasonableness of exemplary damage system; through discussion about the two apposite views and some detailed cases, it proofs that the exemplary damage system is scientific and reasonable. (III) It discusses value of exemplary damage system, i.e. its functions such as indemnity, sanction and containment. The indemnity function of exemplary damage can provide sufficient remedy for spiritual damage so as to compensate the injured party for the damage suffered. In addition, after the injured party brings a suit, various fees such as the expenses paid to the lawyer, fees for work delay due to appearing in court and travel expenditures can only be remedied by exemplary damage. The sanction function of exemplary damage is performed through punishing the deliberate and malicious illegal act and imposing more economic burden on the injurer. The containment function of exemplary damage, by implementation of effective sanction to him, teaches the injurer a lesson and then he will no longer commit an illegal act; it makes illegal actor prevent the occurrence of damage or lower the extent of damage by increasing his economic burden. At the same time, the injured party is encouraged to actively bring a suit and disclose illegal conducts, which facilitates the prevention of potential dangers.Part two analyzes the exemplary damage system in the current legislation of our country. (I) It discusses the value orientation of legislation of Article 49 in the Consumer Protection Law. As for the fee for exemplary damage in the Consumer Protection Law, one time of indemnity is added to the actual loss of the injured party, so that it is endowed with the functions of punishment and of containment. At the same time, there is inevitably a tendency for the injured party to pursue inappropriate interest. While in the dilemma, just "take the heavier one when two advantages coexist and take the lighter one when two disadvantages coexist." Through analyzing the applicable conditions for the Consumer Protection Law, it concludes that if the act of an operator is not enough to mislead the general consumer, then it is not applicable for the Article 49; however he who buys the counterfeit goods wi...