A Research On The Compensation For Punitive Damage In Consumption Relations

The compensation system for punitive damage belongs to the Anglo-American legal system and is the focal and hot point that Chinese jurisprudence circle has been studying all the time. Currently, the continental legal system countries begin to successively cast more lights on the compensation system for punitive damage and initiate it actively in the legislation. Our country firstly tried the double compensation system in the Law on Protection of the Rights and Interests of Consumers, which indicates this system has entered contract field. Objectively, it demands the legal officers of our country must study, absorb and draw on experiences of from this system so that the domestic civil liability system can be perfected. The author hopes that the thesis can provide some contributions to the research on the compensation system for punitive damage.This thesis is divided into four chapters.Chapter I is discussed the fundamental theories of the compensation for punitive damage in consumption relations. Section I is discussed the implication of the compensation for punitive damage. The liability of compensation for punitive damage is also called demonstrative compensation or retaliatory compensation, it refers to the compensation that made by the court whose compensation amounts are beyond the actual damage amounts, namely the damage solatium is not only the compensation for obliges, but also the punishment to the intentional injurers. It is discussed the features of the compensation for punitive damage and relations of the compensatory compensation. Compare with the compensatory compensation, the punitive compensation has the following features: 1. From aim and functions, the compensation for punitive damage is composed by compensation and punishment; 2. From the constitutive elements of the compensation liability, though it should takes the happens of actual damage as the available premise, the compensation amounts should not mainly take the actual damage as standards, but particularly consider the subjective faulty degree of the injurers, subjective motives and compensatory abilities and various of factors; 3. From the compensation scopes, the compensation for punitive damage is not limited by the actual damage, the amounts are all higher even much higher than the compensation for compensatory damage; 4. From the negation of contract, the amounts of the punitive compensation can not be freely arranged by litigants. Section II is discussed the foundation of the requesting right to the compensation for punitive damage, which includes the following parts: 1. Contract violation. The compensation for punitive damage should be available bases on the valid contract. 2. Treaty delinquency. 3. Tort. Section III is discussed the functions of the compensation for punitive damage, which have the following three functions: 1. Compensatory function; 2. Sanctions function;3. Restrain function. Section IV is discussed the calculation to the compensation for punitive damage. Under the circumstance of intentional tort, the punitive solatium should be equal to the injurers'illegal gains; while under the circumstance of the injurers'running away from the responsibilities, the punitive solatium should be equal to the amounts that actual damage multiplies the ratio of responsibility escaping probability and the responsibility undertaking probability.Chapter II is analyzed the main problems of the legislation on the compensation for punitive damage in consumption relations. Section I is discussed the domestic construction of the compensation system for punitive damage from these three aspects: responsibility of products, responsibility of contract, and responsibility of tort. 1. In the responsibility of products, the compensation system for punitive damage needs to be perfected further. It should not be limited within managers and consumers in the Law on Protection of the Rights and Interests of Consumers in the scopes of application; in the conditions of application, except the intentional deception, the behaviors of spiteful non-deed, grave delinquency, and despising others'rights extremely are all applicable for the compensation system for punitive damage. Nevertheless, under the circumstance that the currently domestic market economy is undeveloped, this system should not be excessively enlarged in the responsibility of products. 2. In the responsibility of the contract, the compensation system for punitive damage is firstly applied in the contracts that the power of the transaction parties is uncoordinated. 3. The compensation cases of tort damage is the traditional usage for the compensation system for punitive damage, this system is applicable for all the torts in principle, but the specific judge is decided according to the infringers'subjective malignance in responsibility compositions. Section II is specifically introduced the rules concerning on the compensation system for punitive damage in the domestic present legislations, which includes characters of responsibility, constituent conditions and purpose of the legislation in the forty-ninth rule of the Law on Protection of the Rights and Interests of Consumers. Section III is discussed the appliance of punitive compensation responsibility in the contract of commercial apartment transaction.Chapter III is discussed the main issues of the compensation system for punitive damage in the domestic consumption relations. Section I is expounded the concept of consumption, namely, consumption is to consume material wealth for the needs of production and living. Section II is expounded how to designate the fraudulent conduct and discussed if intentionally should be taken as the important conditions of composition. Chapter IV is discussed the solutions for compensation legislation for punitive damage in consumption relations. The author deems that the domestic legislation of compensation system for punitive damage should be perfected from the following three aspects: Section I is suggested to extend the scopes of application of this system to the contract cases that the litigants have intentional or grave delinquency, tort cases and to pay more attention on the cases of products responsibility; it is suggested to enhance the legal regulations on the punitive compensation responsibility in the domestic civil liability system. Section II is suggested to determine the total amounts of the punitive compensation, deduct the amounts that the compensatory compensation in the law of tort conduct has determined, and these amounts are the compensatory parts for the punitive solatium. Appropriately increase the amounts of the punitive solatium to compensate plaintiffs'cost price for lawsuit and retainers that can determine the amounts of punitive solatium. Section III is suggested that the appliance of the procedure law should be confined to contentious procedures, which is not allowed to compensate through the arbitral procedures.