The Principle Of The Punitive Damages In The Emotional Distress Damages And Its Legitimacy

With the development of our economy and society , the traditional principle of the compensatory damages can't be a good guidance to the sufferer to get effective and just redress in the field of the emotional distress damages of China. According to this, the author considers that at present China should introduce the punitive damages used in the common law countries such as the United States and Britain into the emotional distress damages so that the principle of the punitive damages will be an important guide to the emotional distress damages of China. Therefore, the emotional distress damages of China will be punitive. Only in this way can the emotional distress damages of China give enough conciliation to the sufferer and our harmonious society will be promoted.The first subchapter in Chapter One, that is, the introduction to the punitive damages is very important because it is an essential prerequisite for the arguments of the next subchapters and other chapters. And in the second subchapter that is the relationship between the punitive damages and the emotional distress damages, the author not only expounds the relationship between them but also criticizes the traditional conception of civil law.This is helpful to the third subchapter that differentiates the principle of the compensatory damages from the principle of the punitive damages .In fact ,the discussion about the third subchapter can be considered as the distillation of the second subchapter which puts forward the three important elements or requirements of the principle of the punitive damages that can be applied to the emotional distress damages of China both necessarily and feasibly.Besides this, the legitimation problems of the principle of the punitive damages are based on the theories of the ethical jurisprudence and the due process of law. The legitimacy of the principle of the punitive damages is proved by the Retributionism based on the moral retribution and legal retribution in the first subchapter of Chapter Two .And in the second subchapter the Benthamism of the principle of the punitive damages is proved clearly as well. Of course , the unity of opposites of the philosophy of law is elucidated in the third subchapter and it has a common understanding of value to support the arguments about the legitimacy of the principle of the punitive damages. That is to say, the principle of the punitive damages which is just and utilitarian originates from the unity of the legitimacy of its means and end so it is legitimate. And in the last chapter that is Chapter Three including two subchapters, the author proves the legitimacy of the principle of the punitive damages from the angle of due process of law to express the idea that is "procedural law is mother of substantive law".Therefore, in the two subchapters , special emphasis is laid on whether the principle of the punitive damages is able to meet the demands of procedural due process and substantive due process of law. All in all, the principle of the punitive damages applied in the field of the emotional distress damages is legitimate from the different angles of view of the theory of the ethical jurisprudence and the theory of the due process of law.