The Negative Views On The Punitive Damages Recommended Into China

Punitive damages,which is a system that based on the malicious acts or gross negligence of the perpetrator, with the purpose of punishing the perpetrators, seeking the effect of containment and providing legal assistance for the victims and society, the court ordered the perpetrator to pay compensation ,at the same time, he should be ordered to pay another compensation according to the law. It's generally believed that punitive damages can be applied to both the contractual obligations and tort liability, but mainly tort liability. The system has a long history, but the modern punitive damages system was first established in the UK, then it has achieved a significant development in the United States ,and now it is widely applied in the Common Law countries. But even in the Common Law, the system has been plagued by controversy since its establishment, and even lead to the dispute of the abolition of the system. In Civil Law countries, although the system also began to play some impact, but because of the inherent legal traditions and legal system, legal concepts and other factors, to the system ,people generally hold the attitude of rejection.Although China is a civil law country, it isn't committed to the Civil Law tradition,on the contrary ,it recommended the system of punitive damages.In the legislation, Article 49 of the "Consumer Protection Law" establishes the "double compensation" requirement, which is considered to be punitive damages, and opened the first of its kind in our country; subsequently, the "Contract Law", "Judicial interpretation of real estate transactions " also established the system. Thus,the punitive damages system is applied in the area of contract liability. Then the "Food Safety Law" and "Tort Liability Act," established the punitive damages system in the area of product liability, so , China also established the system of punitive damages in the area of tort liability. As for this , the scholars almost unanimously to endorse it, and said that the system should expand the field of application.The scholars analyzed this mostly from the functions of the system and its real effects,and based on that,they accepted the transplantion of the system. However, punitive damages system is not a "master key",or "magic bullet", we can not expect how much the system can solve the problem.For the cheers of the Legislative community and scholars,the author feel very worried.Punitive damages itself be in a big controversy in Common Law,China,as a Civil Law country, differs from the Commom Law in legal tradition, legal system, legal concepts and other areas ,and whether the system can perform its intended functions, as a " weird stuff" ,it should not enter the country's legal system. Furthermore, the functions of the system that the legislators and scholars ecpect it performs can be performed by the existing system in our law. In this paper, the author use the research methods of historical analysis, comparative analysis, empirical analysis, logical analysis and others to analyze the reasons why we should not transplant the system,hoping that it should lead to other denial researchs on the system, meanwhile, hoping that it could clarify the incorrect understanding of the system,finally,hoping that it could do good to the improvement of our legal system.Besides the introduction and conclusion, the text is divided into three chapters.ChapterⅠan overview of the system of punitive damages. First, the author analyze the meaning, characteristics, and comparisons with related concepts of the punitive damages, defining the origin of punitive damages. Secondly, the author analyze the provisions of punitive damages in the ancient law and modern common law and the reasons for the existence, in order that we can understand that there are specific historical, cultural, political, legal bases for the emergence and existence of the system more clearly. Finally,the author analyze the situation of the system in the Commom Law and Civli Law, in order that we can understand the status of the system more clearly.ChapterⅡ, the empirical analysis of punitive damages and the summarization of the positive comments on the punitive damages system in China. Firstly,the author summarize the provisions of punitive damages in our legislations and Judicial interpretations and analyze the reasons of the provisions,in order that we could understand the reasons why we laid the punitive damages system in our law more clearly.Secondly,the author summarize the reasons why our academic affirm the system,including System functions, historical and cultural foundation, social and economic significance, implementation of legal value and so on. This chapter lays the groundwork for the discussion below.ChapterⅢ, the analysis of the reasons why we shoul not introduce the punitive damages into our law. This chapter is a core part of this article,analyzing the reasons why we shoul not introduce the punitive damages system from many aspects,mainly the traditional of the distinction between public and private law, the functions of civil liabity, the principle of homogeneity compensation, legal value, historical and cultural, jurisprudence foundation, social and economic effects ,and so on.