Legislative Argumentation Of Punitive Damage

The concept of punitive damage is already not a novelty one, as it not only appears in so many law articles, but also has been fixed in the form of law. However, as a kind of system, the punitive damage is born with criticisms. And the development of the society often puts new demands in front of the lowers. Those are the background of this article.The first part of this article is a comparative research on punitive damage. As an exotic concept, so the study of punitive damage should be rooted in the soils which gave birth to it. We choose the American legal system as the beginning. First of all, the author introduces the very first case of punitive damage in the legal history of U.S.A. Then, the article describes the developments and the changes about it, which could be conclude as limitation and maintainability. After that, the article compares the punitive damage in German law system with the American one. In the traditional system of German civil law, the punitive damage was not accepted. The main reason of this is that the damage law in German legal system sticks to the principle of compensative damage since the ordination of the German Civil Code. However, the punitive damage has already existed in the legal practicality. And under the process of the incorporation, the gene of punitive damage becomes more and more important. Finally, the article describes the situation in our country, the affirmations of the statute laws and the main opinions of the scholars.The second part is about the discussion in theory. The main point of this part is to explain the reason of the exclusion of punitive damage, through the analysis of modern damage law system. Firstly, the author talks about the principle of compensative damage and the formula of compensation. Although the compensative damage is the basic principle in our legal system, it is far away from perfect. The author treats the compensation formula as the cut-in point to criticize the compensative damage. Yet the compensation formula is not the common concept in our damage system, and the author uses it to uncover the main disfigurement of the principle of compensative damage that what the compensative damage could show is only the relationship between the lost and the damage and it is unable to punish the torts. By this way, the author criticizes the damage formula, especially the theory of interest in it. The theory of interest simplifies the relationship between people and ignores the bad influences that are created by the torts. As a result, the compensative damage can not renew the broken relationships. The article puts forward the theory of social relation which is the basic of punitive damage.The third part leads the research of punitive damage to the field of social positivism, discussing the social basic of punitive damage in our country. The first one is the economic basic, as any change of the social structure is driven by the development of economy. One of the inevitable results of the development of economy is the aggravation of the gap between the rich and the poor, which departures the hypothesis of traditional civil law system that everyone would be equal. At the same time, with the aggravation of the gap of civil subjects, there emerge many unequal tort cases. Under the conjunct effects of those two, the compensative damage shows its ossification. In addition, there are many recessive costs in the civil action. Such things could not be found in books, but it exists actually and aggravates the loads of the civil action attendee. After the discussion about economic basic, the author comes to the analysis of social structure and pubic mind. In fact, with the development of the right consciousness, people become not satisfied with the predigested justice given by compensative damage.The forth part focuses on the axiology. As many scholars said, the foremost discuss about the punitive damage is on the field axiology. So the article gives three axiological judgments in the front of this part in order to create a felicitous flat-roof for the comment of punitive damage. In this process, the author uses the tools of means value and aim value. The means values of the punitive damage include three factors which are the punishment, determent and the self-enforcement. Then, the article recovers the aim value which is the justice. In the opinions of the common legal theory, the aim value is a multi-system, but for the concretely legal system one part of them will be more important than the other. For the punitive damage, it is the justice.The fifth part, which is also the final part of the article, is about the legislation of punitive damage and it is the aim of all the agreements above. In this part, the author begins with the characters of the punitive damage and deconstructs the punitive damage in the means of function. In this part, the author talks about the principles of the instruction of the punitive damage system by the path of the fine system. As the raw materials of the punitive damage, the concept of fine used there is in the broad sense which includes the criminal fine and the administrative fine. The final aim of this article is to create an availability system of punitive damage.