Research On The Application Of Punitive Damages In Our Tort Law

The moden punitive damages, originated in Britain, and then be inherited by common law countries, becomes an important part of the tort law in common law countries. Although there were lots of punitive damages judgments in the common law countries, during his history of more than 200 years, it has been formed with controversy. Because of his function of punishment and deterrence, which showed strong characteristics of public law, it departures from the traditional tort law, which is based on the fundamental principles of compensatory. It is precisely because of this punitive compensation mechanism of compensation is different from the traditional thinking of private law, in the civil law countries which are emphasizing the division of public law and private law, punitive damages were excluded from the legal system for a long period of time. Our country is profoundly affected by the concept of civil law legal tradition, There is a big debate on whether the system of punitive damages should be established in China.Since the twentieth century, with the socio-economic development, the legal theory and legal system of common law and civil law have been impacted and interacted each other, which lead to that punitive damages has gradually spread its influence into the theory and practice of civil law. As a civil law country, our fundamental theories of civil law also refuse to accept the punitive damages. However the objective needs of reality can often obligate the legislators to break these traditional restrains and develop new legal mechanisms or rules to solve social problems. In fact, our country has introduced the punitive damages. There are clear provisions of " double damages" in Law of 1993 the People's Republic of China on Protecting Consumers' Rights and Interests and the relevant judicial explanation. And 2009 Food Safety Law of the People's Republic of China set "ten times damages". While China's "Civil Code" is going to be drafted, A growing number of scholars advocate that punitive damages should be establish in China, specifically, there are four drafts of Civil Code which are drafted by Chinese Academy of Social Sciences, Renmin University of China, Professor Xu Guodong, Professor Yang Lixin which are all provided the rule of punitive damages. It shows that the Chinese legal system provide for punitive damages system is the trend of future legislation. So, the article observer that it is necessary to establish punitive damages in our tort law. This article aims to provide theory of establishment punitive damages in our tort law.Except introduction and conclusion, there are five parts in the article:The first part:definition of punitive damages. The premise of the study is to definite the conception. In this part, on the base of study origin of punitive damages thought, sorted out in the modern sense of the definition of punitive damages, then it come to the definition of punitive damages of this article. And then it compared the punitive damages with other system of the tort law system, in order to clarify the relationship between them.The second part:The historical development of punitive damages. Firstly, it described evolution of punitive damages in common law tort system, Then, described the attitude of punitive damages in civil law countries and regions. Based on that, article suggested that punitive showing three characteristics:it is a dynamic system; to its scope of application has been limited in t modern legislation; some countries or regions of civil law have emerged punitive damages in a particular area.The third part:the theoretical basis for punitive damages of China's tort law. This part discusses the function of punitive damages in a new angle of view. The article puts forward its idea that the system of punitive damages does its work by the means compensation, Punitive, deterrence and encouragement, analyzed in detail and represents a theory about the evolvement and steps of the function of punitive damages.The forth part:Evaluation of the provisions of China's punitive damages. This part analysis the present relevant system in our country and proposal about instituting the said system. The People's Republic of China on Protecting Consumers'Rights and Interests and the relevant judicial explanation. And Food Safety Law of the People's Republic of China.The fifth part:This part is the last Part of this article. Firstly, its tresses the importance of establishing the punitive damage system in China; then it states on the current situation of legislation in China, analyzing the contributions as well as limitations of the "Draft of the Code of Civil Law"; Finally, it comes up with how to establish punitive damage,it includes making clear the core conditions for the punitive damage; deciding the sum for punitive damages, etc.