On Determining The Amount Of Punitive Compensation In The Cases Of Commercial Housing Transaction

Articles 8 and 9 of the Judicial Interpretation of Commercial Housing stipulate punitive damages for disputes over the sale and purchase of commercial housing,limiting the scope of punitive damages to two types of malicious breaches and three types of fraud,and punitive damages.The amount determination standard is set to “no more than double the amount paid for the purchase”.The application of punitive damages in the field of civil law is mainly divided into two parts: one is in the field of infringement,and the other is in the field of contracts.The punitive damages in the contract area are mainly reflected in Article 113,paragraph 2 of the Contract Law,Article 55,paragraph 1,of the Consumer Protection Law,Article 70 of the Tourism Law,and Article 148 of the Food Safety Law.Before the promulgation of the Commercial Housing Judicial Interpretation,only Article 113,paragraph 2 of the Contract Law and Article 49 of the old Consumer Protection Law,related to punitive damages,only the "Consumer Protection Law" made specific It is stipulated that the standard for determining the amount of punitive damages shall be “increasing the amount of compensation for the purchase of goods”.In 2014,the new “Consumer Protection Law” was promulgated,and the “doubled” rule in the old law was amended to three times".In the face of the increase in the amount of punitive damages in the new Consumer Protection Law,the provisions on the amount of punitive damages in the Judicial Interpretation of Commercial Housing have caused significant conflicts with them,which has led to a series of problems,such as the sale of commercial housing.The amount of punitive damages determines how the applicable law should be chosen? What is the basis for the interpretation of the Commercial Housing Judicial Interpretation? How to set the calculation standard for the amount of punitive damages in the sale of commercial housing is more reasonable? What is the way to determine the amount of punitive damages in the sale of commercial housing? In general,how should the amount of punitive damages in the sale of commercial housing be determined? This is also the problem that this article attempts to solve.This article consists of four parts:The first part clarifies the judicial practice of determining the amount of punitive damages in the sale of commercial housing and analyzes it.Based on the typical referee cases retrieved,the paper expounds and analyzes the two aspects of the choice of law and the determination of the specific amount of the case.In terms of the choice of law,before the implementation of the current "Consumer Protection Law",there are 6 cases under the "Consumer Protection Law" Article 49 as the basis for the judgment of commercial housing contract disputes,the current "Consumer Protection Law" After that,there is no such case as a basis for punitive damages in commercial housing transactions.The question that arises from this is: When there is a conflict between the Consumer Protection Law and the Judicial Interpretation of Commercial Housing,what is the basis for directly applying the latter? This has led to several related controversial issues.Regarding the determination of the specific amount,the 14 judgments made by the Supreme Court and the High Court are taken as reference.Among them,the judgment scale of 11 judgments is double that of the purchased house,and the scales of the other three judgments are 0.5,0.6,and 0.8 respectively.Most judgments did not specify the discretionary factors determined by the specific amount.The question that can be drawn from this is,in the case,what should the judge use as a discretionary factor in determining the specific amount?The second part elaborates on the controversy regarding the determination of the amount of punitive damages in the sale of commercial housing.The paper elaborates and evaluates the legal basis,calculation model,standards and determination methods for the determination of the amount of punitive damages in the sale of commercial housing.First,in terms of legal basis,there are two main views on the choice of law: one is the Consumer Protection Law as the legal basis;the other is the Judicial Interpretation of Commercial Housing as the legal basis.There are two views on the interpretation of the Judicial Interpretation of Commercial Housing: one is based on the "Contract Law";the second is the "Consumer Protection Law".Second,in terms of computing models and standards.There are two main points of view for the calculation mode: one is the proportional mode;the other is the non-proportional mode.The calculation criteria of the proportional mode are described in terms of both the base standard and the multiple standard.The viewpoints based on the base standard are based on the purchase of the house as the base,the purchase price of the house as the base,and the loss suffered by the buyer as the base.The controversy over the multiples standard is mainly explained from whether to set a certain multiple,the multiple of the quota,the fixed mode or the elastic mode,and whether to set the lower limit.Among them,the viewpoint of the multiple amount is that the double is used as the upper limit and the base is three times as the upper limit.Third,in terms of the method of determination,there are two viewpoints on the method of determining the amount: one can be agreed in advance;the other is that it can only be determined by means of court judgment.The third part analyzes the problems and disputes in the determination of the amount of punitive damages in the sale and purchase of commercial housing,and gives the viewpoints from three aspects.One is to use the purpose of purchasing commercial housing as the distinction to apply the law;the other is to adopt the proportional calculation mode and The existing calculation standards should be improved;the third is that the amount of compensation can only be determined by way of court judgment.The fourth part puts forward some suggestions for the determination of the amount of punitive damages in the sale of commercial housing.First,in the "Civil Code Contracts",the relevant provisions for improving punitive damages can be expressed as "the law provides for punitive damages,according to its provisions,the parties are required to make compensation beyond the amount of damage done";the second is to improve the sale of commercial housing.The calculation standard for punitive damages,the calculation base is revised to “the buyer’s loss”,and the calculation multiple is unchanged;the third is to determine the discretionary factors determined in the case,which should include: the size of the benefit obtained by the seller,The property of the seller,the impact of the seller’s malicious acts on the society,the fault of the buyer,the amount of compensatory compensation and the loss of the buyer.