Font Size: a A A

Research On "Research Of The Punitice Damages System"

Posted on:2021-02-24Degree:MasterType:Thesis
Country:ChinaCandidate:P X XuFull Text:PDF
GTID:2416330605468234Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Punitive compensation refers to the compensation made by the court for the purpose of deterring and containing illegal acts,which exceeds the actual loss.Punitive compensation has the characteristics of punitive,accessory and statutory.Punitive is to require the infringer to bear more than the actual loss of compensation.Collateral refers to that punitive compensation can not exist independently of compensatory compensation,which is based on the premise of the establishment of compensatory compensation.Only when compensatory compensation can not make a negative evaluation of the illegal act of the infringer,punitive compensation can be considered,which has a certain degree of modesty.Statutory means that if the law does not clearly provide that punitive compensation can be applied in this case,the court can not apply punitive compensation at its discretion.There are some differences between punitive compensation and compensatory compensation:(1)the scope of application is different.In compensatory compensation,the obligee can only claim compensation based on the actual loss,but punitive compensation is not limited.(2)The principle of imputation is different,the principle of imputation of compensatory compensation is more diverse,while punitive compensation applies fault liability and generally requires intention as a constituent element.(3)Different procedures,punitive compensation is based on the establishment and application of compensation,but compensatory compensation has no such requirement.Punitive compensation,criminal fine and administrative fine are all punishment methods,but they are different systems.In nature,punitive compensation belongs to civil liability,while criminal fine and administrative fine belong to public law.The compensation metal of punitive damages is owned by the infringed,and the latter's income is included in the state finance.In terms of procedure,punitive compensation is applicable to civil procedure,which is a lawsuit between equal subjects,while criminal fine and administrative fine are respectively applicable to criminal proceedings administrative proceedings.Compared with compensatory compensation,punitive compensation has more functions,such as punishing illegal acts with high compensation,thus reducing the possibility of illegal acts.At the same time,because the infringed can get more compensation than the actual loss,it can encourage th e infringed to exercise their rights.The punitive compensation system has been full of many disputes in the theoretical and practical circles since it came into being.For example,many scholars believe that the nature of punitive compensation is essentially in conflict with the compensatory principle of civil law,so punitive compensation does not belong to the category of civil liability.The nature of punitive compensation is essentially the responsibility of private law.The traditional civil law requires compensation,which is based on the idea that the civil subject is equal.Since one party is equal,it can not punish the other party,but can only demand to make up for the loss.But with the development of market economy,from the former era of free capitalism to the era of monopoly,there are a large number of monopoly enterprises in the market.The equal relationship in the era of free capitalism has been broken,and substantive inequality has been formed between these enterprises and natural persons.To solve this problem,the phenomenon of public law of private law has also appeared in civil law,such as the generation of good faith Then,the principle of fairness and so on,all these reflect that the civil law from the beginning only pays attention to the formal equality to the substantive equality,punitive compensation is consistent with the concept of civil law development.Punitive compensation is applicable to civil procedure,which is initiated by individuals rather than the state.Moreover,punitive compensation belongs to individuals,so punitive compensation is civil liability.At the same time,from the perspective of practical needs,there are large-scale infringements on consumers' rights and interests and on behalf of ecological environment infringements in modern society.They are characterized by a wide range of infringements,and are generally non-specific subjects.The subjects of infringements are generally large companies.Due to the strong economic strength of large companies,on the one hand,the amount of compensation is less,on the other hand,due to the lack of experience The stimulation of economy,the difficulty of litigation,the low desire of ordinary people to sue,and the difficulty of safeguarding rights make it difficult for traditional compensatory compensation to regulate these illegal acts,thus giving birth to the modern punitive compensation system.Punitive compensation has punitive nature,which provides procedural protection in the process of application.For example,to improve the standard of proof of punitive compensation,when there is a concurrence of punitive compensation,criminal fine and administrative fine,punitive compensation will be applied first.There are many disputes in the process of the emergence and development of punitive damages,but this does not hinder the development of the system.The first law to stipulate the punitive compensation system in China is the law on the protection of consumers' rights and interests,which is to solve the serious problem of illegal businesses infringing on consumers' rights and interests at that time.Subsequently,the punitive compensation system has been successively stipulated.And due to the needs of social development,in the recently adopted civil code,the applicable fields of punitive compensation have been expanded,for example,due to the current knowledge The tort of property right is serious,the development of science and technology is rapid,and the relevant legislation is difficult to meet the needs of reality.The civil code first stipulates the general terms of punitive compensation for intellectual property infringement.At present,the ecological environment protection is urgent.In order to implement the green principle,the punitive compensation for ecological environment infringement and the application scope of punitive compensation for product infringement are stipulated.The application of the general terms of punitive damages for intellectual property rights is conducive to unifying the legal rules of intellectual property rights infringement and better protecting intellectual property rights.Its elements include intention and serious circumstances.Its lack of punitive compensation provisions,easy to lead to the discretion is too large,it is difficult to ensure the consistency of judicial decisions and the abuse of punitive compensation.The establishment of punitive compensation for ecological environment infringement includes subjective and objective elements.The former requires the actor to have the intention,while the latter requires the violator to violate the law,pollute the environment and destroy the ecology,resulting in serious consequences.However,in the civil code(Draft),the objective elements are defined as violation of national provisions,which is a relatively vague concept,including laws,administrative regulations,rules and so on.Due to the lack of judicial experience in the application of punitive compensation in environmental and ecological infringement,the abuse of punitive compensation is easy to occur,so it is changed into violation of laws and regulations in the civil code It must be more appropriate.It is beneficial to solve the problem that enterprises are slack in fulfilling their remedial obligations and solve the problem of product safety by including the remedial obligations such as warning and recall of defective products into the scope of applicable punitive compensation.After the judicial practice of punitive damages is mature,the general provisions of punitive damages can be set up in the tort liability law of the civil code.On the one hand,it can provide a higher level basis for the application of punitive damages in specific types of tort cases,on the other hand,it is also conducive to dealing with the endless infringement cases.At present,the application of punitive damages in the field of contract law is mainly aimed at the fraud that violates the principle of good faith.The article that punitive damages can be applied when one party violates the principle of good faith or maliciously breaches the contract can be added to the contract law of the civil code,so as to promote the establishment of the market environment of good faith.In view of the characteristics of the network age,the infringement of personality right has the characteristics of concealment and serious losses,while compensatory compensation is difficult to protect the infringed effectively,which can be included in the scope of application of punitive compensation,and encourage the infringed to safeguard their rights,so as to better protect their personality right in the network age.
Keywords/Search Tags:Punitive Damages, Tort liability law, Compensatory damages, Civil Code
PDF Full Text Request
Related items