| Punitive damages,as a special type of judgment in the civil and commercial areas,has always been difficult to be carried out abroad because of different application conditions of the punitive damages substantive law system in different countries and the high litigation costs.In fact,recognition and enforcement of such judgments actually has rightful theoretical basis.On the one hand,the affirmation of this type of judgment in a foreign country can ultimately enable the specific value of the punitive damage compensation entity system to be realized at the three levels,legal function,law and economics,and sociology of law.On the other hand,although such judgments are liable to be identified as a penal one due to the highlighting of the punishment function,and the direct contradiction of some recognition countries’principle of prohibition of enrichment in civil law even though the judgment has already been identified as civil and commercial one,both of which can be made a breakthrough through the corresponding discussions.From an empirical point of view,currently there are mainly three recognition modes of punitive damages judgments in the world.First is the total rejection mode,which means to deny all the judgments that distinguish or does not distinguish between money components in reason of they are penal or they’ve violated of the prohibition of enrichment.Second is the principle recognition mode,which means that the judgment is not in breach of public policy,but still needs to be examined by the principle of proportionality or the maximum amount that can be judged by the recognition country in the similar cases.Third is the depecage mode,which means to make a difference between the compensation and penalty of such kind of judgments,and to recognize the part with compensation significance.A conclusion can be drawn from the comprehensive investigation of the three modes that the traditional practices are quite different due to the difference of the establishment of punitive damages system in two legal systems and the outstanding enforcement problems of the U.S.extraterritorial judgments.Recently,thanks to some civil law countries have limitedly introduced punitive damages elements to their substantive law,the method of depecage and the proportionality principle helped to break through the predicament,and the control of the amount of judgments within the United States,an easing and interactive tendency is arising.AS a result of the coexistence and lack of agreement among the three modes,the application of depecage method and the principle of proportionality are limited,the substantive law obstacle of the United States has not been completely eliminated,nowadays the recognition and enforcement of such judgments haven’t reached an agreement.Coordination of the recognition and enforcement of punitive damages judgments at the international level has always been conducted by the Hague Conference on Private International Law.Among many conventions or draft conventions that have been published,the 1999 Convention on the Recognition and Enforcement of civil and commercial jurisdiction and the Convention on foreign judgments(Draft),and its subsequent series of drafts from 2001 to 2005 Which were presented in almost identical terms,gave the obligations of recognition countries that they must enforce the judgment within the same or similar compensation scope which themselves can made.Thus a coordinated approach of approximate principle mode was established.The Convention on Choice of Court Agreements,2005 and the Convention on the Recognition and Enforcement of Foreign Judgments(Draft),2017,which is undergoing fierce negotiation,allow the recognition countries to refuse the part which is not for the actual loss after reminding them considering of the part which tries to cover the litigation expense,Thus the unified coordination strategy of approximate depecage recognition mode was adopted or partly adopted.Comparing the two types of coordination method,although the latter one has no special clauses of provisions of punitive damages judgment,and the minimum recognition of obligations have also shrunk compared with the former,as a whole,with its salient advantages,it is still the best international-level coordination solution that can be reached in the current context.China has signed the Convention on Choice of Court Agreements,and is negotiating about the Convention on the Recognition and Enforcement of Foreign Judgments(Draft).Coupled with the in-depth development of the economy open to the outside world,China will soon face the recognition and enforcement of foreign punitive judgments.However,the existing provisions on domestic mutual legal assistance are obviously not clear enough in dealing with such special judgments.Therefore,we must expeditiously establish an exact solution to the recognition and enforcement of such judgments.Although as a civil law country,China has a punitive damages system,there are still many differences compared with the common law system in regard to the scope and conditions of application,the status and function of the system,and the amount and frequency of judgments.It is suggested that with the subsequent system connection of the Convention on Choice of Court Agreements,the laggard total rejection mode and the advancing principle recognition mode should be excluded.And the depecage recognition mode that is directly linked with the convention should be adopted,and it is the most appropriate one at present.After finding out whether there are other pre-requisite implementation flaws and refusing the penal judgment which means part of the punitive damages should be given to the government,according to the provisions of Article 11,the part of extraterritorial punitive damages which matches the actual loss including future loss should be ascertained by object evidence first,and then to consider the litigation expense except for the actual loss based on the proves of the winning party,finally to recognize and enforce the judgment of punitive damages within a proportion scope of 1 to 3 of the actual loss. |
