The Application Analysis Of Article47of The Tort Liability Law

Article47of The Tort Liability Law has introduced punitive damagessystem to our country for the first time, which is of great significance.However, No.47is too conservative in matters and it is too principle and lackin maneuverability, which affects the effectiveness of the system.This paper argues that applicable conditions of Punitive damages in productliability should be relaxed appropriately.(1)Deliberateness is the onlysubjective component of Punitive damages liability. But the degree ofmalignancy and consequences in gross negligence is equal with the degree ofdeliberateness. So the subjective components should include grossnegligence.(2)In addition to the law “knowingly product quality defects andcontinuing to produce and sale”, violating of warning and recallingdefective products is not required to bear the punitive damages. It is notsame with the foreign legislation. And there is a gap between the provisionsof legislation and the voice of our people. This should be changed.(3)NO.47is only applied when the defective products cause death or seriousdamage to health situations. It does not apply to general personal injury, therecessive risk of health damage, mental damage and loss of property. theprovision of NO.47can not reflect the original intention of punishingmalicious people. It should be expanded.In addition, NO.47is too principle, should be standardized through thelegislation and the judicial interpretation:(1) Punitive damages are short ofthe protection of the legitimate rights. NO.47does not explain the standard to determine the amount of Punitive damages, so it is hard to forecast the damages.Considering the trend of limitations in Britain and the United States, andConsidering our judicial practice at present, I think the damages should belimited. The specific amount should be in the range of two or three timesof Compensatory damages, which may avoid the moral hazard, and keep thedeterrence of Punitive damages. NO.47is short of special requirements tothe standard of proof. I think we can use the “Evidence Advantage Rules”, sothe vulnerable members can be protected. In the distribution of the burden of proof,the ability of Plaintiff is weak. Although the infringer has his own opinion, wecan not exclude his obligation to prove he can not bear the liability.(2) NO.47dose not explain the differences between Punitive damages and Moral damagecompensation. The Moral damage compensation is also has the function of punishment,but this function is additional, so NO.47can use the Punitive damages togetherwith Moral damage compensation; The catalog of compensatory damages shouldinclude Moral damage compensation. When the amount of Punitive damages isdetermined, the amount of Moral damages compensation should be reduced asappropriate.