How Can Gross Negligence Constitute The Subjective Element Of Punitive Damages

On May 28,2020,the “Civil Code of the People's Republic of China“(hereinafter referred to as the Civil Code)was approved at the Third Session of the Thirteenth National People's Congress,and will come into force on January 1,2021.If the Civil Code is a magnificent palace constructed by the “General Principles of Civil Law“ and individual civil laws,then some new cornerstones have been added to the building;for example,for punitive damages in the Tort Liability Law,the Civil Code has expanded it to three specific areas: product liability,environmental pollution,and intellectual property rights.One of the focal arguments during the legislative review of the corresponding newly-added content is:whether gross negligence can be the subjective element of punitive damages in the field of intellectual property or environmental pollution.In fact,there have been many opinions on whether punitive damages can be applied to gross negligence.Taking advantage of the timing of the promulgation of the Civil Code to clarify and discuss the issue may help to perfect the theoretical interpretation of punitive damages,and to correct application in judicial practice in the future.The thesis consists of an introduction and four chapters.The introduction part summarizes the research trend of punitive damages in recent years,and summarizes the different opinions on whether punitive damages can be applicable to gross negligence,including agreeing,opposing,compromising,and even completely denying the issue.Furthermore,it is pointed out that different expressions for punitive damages in the existing legal provisions may also affect the substantive determination of subjective elements.Therefore,it is indeed necessary to discuss whether gross negligence constitutes a subjective element of punitive damages.From the perspective of comparative law,the first chapter compares the subjective elements for punitive damages in common law system,civil law system and China.Although punitive damages originated in the United Kingdom,the United Kingdom has stricter restrictions on its scope of application and lacks very clear general elements.In addition to intention and gross negligence,the U.S.uses many different concepts on punitive damages such as malice,reckless,willful,wanton,evil,etc.,which have a more detailed division of subjective elements than China.The civil law system has rejected punitive damages historically,so that European countries and Japan have not yet made clear legislation,let alone fully discuss and unify subjective elements.In Taiwan,China,the subjective elements of punitive damages contain both intention and negligence,but there are differences in the amount of compensation.In mainland of China,the subjective elements of punitive damages have used different expressions such as fraud,knowingly,intentionally,maliciously,etc.The gross negligence does not clearly appear here,but it is worthy of further discussion.The second chapter is the introduction of basic concepts,which will serve as the research foundation of this thesis.From the historical view,punitive damages maybe originate from multiple damages in ancient law and religious law.Regarding punitive damages in modern law,it originated as administrative compensation,and intertwined with mental damage compensation,but then developed into different types of compensation.The deprivation of compensation resulting from the theory of unjust enrichment is also similar to punitive damages.On the other hand,the introduction to the concept of gross negligence begins with the theory of fault,showing the different doctrines of fault,as well as various explanations about the concepts often mentioned together,such as:intention,negligence,gross negligence,knowing and maliciousness,from which we can see the complexity and ambiguity of the subjective elements.The third chapter aims to analyze the reasons for different understandings about the subjective elements of punitive damages.For example,the understandings of basic concepts are different,the theoretical mismatch between the common law system and Chinese legal system,thechanges in legal standards in historical development,etc.,and the subjective elements for different fields are discussed at the end.Through the above analysis,it can be seen that the way of argumentation is important for obtaining an appropriate point of view,and the rationality of the difference in subjective elements between different fields should be considered.Finally,the fourth chapter returns to Chinese relevant legislation.This chapter trys to prove that,at least in some specific filds such as food safety and product liability,gross negligence can be included in the subjective elements of punitive damages.However,due to the vagueness of the concept of gross negligence,it is not appropriate to add gross negligence in the legal provisions directly.Instead,trying to categorize gross negligence in a specific field,and to describe the categorizations in legislation,maybe a more recommended way.In summary,this thesis conducts a special study on whether and how can gross negligence constitute the subjective element of punitive damages,in order to benefit the accurate application of punitive damages.