Study On The Specific Application Of Punitive Damages Stipulated In Article 47 Of "Tort Liability Law Of People's Republic Of China"

Punitive damage system primarily originates from common law countries.Most civil law countries in Europe hold a negative attitude towards this system.When Germany,France and Belgium deal with cases concerning about monetary compensation,they will limit the compensation liability to the victim's actual losses.Because Chinese civil law system is deeply affected by Germany's and other civil law countries',China also use compensating indemnity in tort law area previously,which means infringer only needs to compensate victim's actual losses.However,in the past,whether to introduce punitive damage system into Chinese tort area is always a controversial topic.Nowadays severe infringement acts,like food safety,act of infringing customers' personal rights and interests,are emerging in an endless stream.To adapt the development of social reality,Chinese legislative branch stipulate punitive damage system in separate departmental laws.This article analysis the nature of punitive damage on the basis of it's historical evolution.What's more,it reveals from the perspective of economics law that the essence of punitive damage is to internalize the external cost of private infringement act.It also demonstrates in detail that how punitive damage realizes double incentive functions.Besides,this article points out the necessity and rationality of the application of punitive damage system in Chinese tort area.Because of the above reasons,punitive damage system was introduced in “Tort Liability Law of People's Republic of China”.Besides,punitive damage system is stipulated as the general provision in Chinese tort area.If there are any conflicts arise concerning about the application of the specific punitive damage provisions between “Liability Law of People's Republic of China” and “Consumer Protection Act of People's Republic of China” or “Food Safety Act People's Republic of China”,the later Acts shall prevail according to the rule “the special regulation is superior to the generally regulation ”.The study on punitive damage system is still in start-up stage when the relevant laws and regulations was issued.Therefore,the application of punitive damage still has a lot of problems.Firstly,whether partial infringement shall apply to punitive damage as a whole infringement.This article discuss about this issue in a specific case.Besides,from the perspective of the punitive damage's nature and legislative intent behind this system,it draws the conclusion that partial infringement shall apply to punitive damage as a whole infringement.Secondly,some scholars pointed out that the applicable scope of punitive damage in Chinese tort area is too small.According to this viewpoint this article provide some solutions such as establishment of the general rule in punitive damage system.Thirdly,this article demonstrates some shortages in article 47 of “Tort Liability Law of People's Republic of China” and also provides corresponding solutions herein.Finally,some controversial topics being discussed in this article,like “ how to determine the sum of punitive damages”,“ does punitive damage including spiritual damage”,“ will the victim get unjust enrichment form punitive damage ”,“will the application of punitive damage in product tort area encourage the victim intentionally causing damages”.The key point of this article is to demonstrate the nature of punitive damage,and to point out its shortcomings during the application of Tort Liability Law of People's Republic of China.Through providing corresponding improvement measures,the application of punitive damage system in China can be more perfect and accurate.