A Study Of Punitive Compensation Of Commercial Housing Sale

Compensatory liability is intended to compensate the victims of direct losses and the possible benefits of losses.For real estate developers, the compensation responsibility is minimal compared with the improper benefit from illegal behaviors than. Therefore, the real estate market needs to determine the punitive compensation system, to deter disciplinary developers irregularities and regulate the behavior of the real estate market transaction. China’s 1993 "Consumer rights and interests protection law" first introduces the punitive damages liability system. For commodity includes commercial housing, whether there have bigger controversy, giving specific legal use difficult. In 2003 the Supreme Court of Contract on judicial interpretation again clearly defined the system of punitive damages, which makes real estate contract dispute in the applicable specific basis. Punitive damages liability system was established relatively late in our country. "The same case of different sentence"triggers widespread discussion of the judiciary. It is necessary to strengthen the study of the theory of the legislation.The provisions of the relevant existing punitive liability regimes are scattered in consumer protection law, contract law and judicial interpretation. In terms of commodity house business, the scope of application of punitive damages liability includes housing developers malicious breach of contract, fraud and error. For the "goods" of consumers’ rights and interests protection act, there is "goods" and "non commercial said" two views in theory.Commodity house is a special commodity, as well as workers in exchange for labor products manufacturing, which should belong to the category of goods referred to in the consumers’ rights and interests protection law. Judicial practice shows that the applicable scope of the current judicial interpretation provisions on punitive damages liability system is too narrow, and not fully includes default or fraud case in reality. Therefore, we should change the way scope set, using general type and combination of enumerated type, and expand the scope of punitive damages responsibility appropriately.Judicial interpretation of the applicable conditions existing in punitive damages is divided into subject, subjective fault, illegal acts, the fact of damage and the causal relationship between the five elements. The lack of the current conditions of provisions shall be applicable to the punitive damages, including that developers fraud case the burden of proof allocation is not reasonable, subjective elements that are not clear, and so on. Therefore, we should reasonable distribution of commercial housing buyers and sellers of the burden of proof.Namely in developers fraud case, apply the principle of presumption of fault liability, shift the burden of proof to the developer of the dominant, easier to court proof and litigation procedure. Gross negligence shall be included in the subjective elements that punitive damages liability, in order to better protect the legitimate rights and interests of home buyers.On the amount of punitive damages liability to determine, the current judicial interpretation provisions have many shortcomings and defects, which specifies the highest ratio of the minimum amount of compensation without standard and not clearly establish the punitive compensation reference factors. Therefore, we should reasonably determine the punitive damages and compensatory damages and the proportion of the relationship of the two parallel computing. Establish the system of upper and lower limit parallel and clear the compensation amount is reference factors. Determine the judge power restriction and supervision mechanism.