Of Punitive Damages In The Field Of Consumer Contract

Article 49 th of the 1994 Law on the Protection of consumer rights and interests of the People's Republic of China(hereinafter referred to as the Law on Elimination)introduced the system of punitive damages for the first time,which was later amended to the first paragraph of article 55 th of the new law of 2013,whereas the first paragraph is generally considered to be contractual penalty compensation,The first revised paragraph perfected the system of punitive damages based on consumer contracts.Because the punitive damages belong to the "foreign product",its function and nature are different from the ordinary compensatory compensation,therefore,the system encountered many problems in the process of the implementation of the elimination law,including: How to determine the consumer identity,the scope of goods and services unclear,How to determine the fraud behavior of the operator in the elimination law and how to guarantee the implementation of punitive damages under the Internet platform and so on.Based on the first paragraph of article 55 th of "Elimination Law" in China,this paper collects and collates the relevant cases of punitive damages stipulated by 66 courts in the application of this clause,and makes a summary of the cases,finds out the focus of the dispute in the case,and By summing up the different decisions made by the Court in respect of the same or similar facts.Therefore,it provides the idea to find the measure to perfect the punitive compensation system.Solving these problems is of practical significance for better protecting the legitimate rights and interests of consumers.Aimed at these problems in the judicial referee,return to the elimination of paragraph 1 of article 55 of the punitive compensation system itself,need to an interpretation of the connotation of the clause in the specification to explain when will find that there are certain defects in the provisions of the law itself,and these defects in 66 sample cases is also reflected in the referee.Therefore,for "elimination" and apply the provisions of paragraph 1 of article 55 these obstacles in the process of specific performance in what way,the article in the second part made a detailed analysis.Through the analysis of the case and the interpretation of the law,summed up the related measures to improve the system of punitive damages in the field of consumer contract.When defining the concept of consumer needs to keep pace with The Times,the cognizance of "consumption" to "not for resale" as the standard is more reasonable,to know the fake fake consumer identity should be concrete analysis,at the same time,consumers should not including unit;Big-ticket items and add gift also belong to the category of "commodity","service" also shouldn't rule out the medical service,etc.;The elimination of the constitutive requirements of fraud business operators should to the supreme people's court of some issues about carrying out the opinion(try out)"(hereinafter referred to as" opinions ")the sixty-eighth regulation of the "four elements" as the criterion of fraud;When calculating the amount of punitive damages shall be based on "fraud by part of the price" for the compensation for the base,at the same time increase the provisions of the relevant situation discretion to the defendant,and the lowest compensation should also be appropriate to improve.Finally,through the establishment of credit evaluation mechanism and perfect operators,safeguard mechanism for settlement and other supporting measures,to ensure the system fully implement in the end.