| The Civil Code,which took legal effect in 2020,establishes a system of punitive damages in Article 1232 of the Tort Liability Book,which mainly establishes the basis for its legal application in the field of ecological protection.The application of punitive damages has its unique institutional value of punishment,deterrence,and compensation,but whether Article 1232 can be properly applied to the field of ecological and environmental damage compensation has been controversial.This paper reviews the theoretical basis of punitive damages,clarifies the concept of ecological and environmental damages,mainly selects the state ownership of natural resources as the basis of the right source,and further solidifies the justification of the application of punitive damages through the legislative combing and legal interpretation of China’s ecological and environmental damage compensation system.The case of Fuliang County People’s Procuratorate of Jiangxi Province v.Zhejiang Hailan Chemical Group Co.,Ltd.was heard in public and the verdict was announced in court.This case is the first typical case of punitive damages in the field of ecological environmental protection after the implementation of the Civil Code,and has attracted great attention in theory and practice once the verdict was announced.Therefore,this article provides a comprehensive critical analysis of the Aquamarine case: the trial court in the Aquamarine case creatively expanded the subject matter of the claim under Article 1232 of the Civil Code;clarified the retroactivity of the provisions of the Civil Code in the case;and more This is the main useful exploration of this case.On the other hand,the trial court in the Aquamarine case also had problems such as insufficient theoretical arguments,failure to achieve good institutional interaction,imprudent application of punitive damages,inappropriate use of functional environmental losses as the basis for calculating punitive damages,and failure to adequately explain the justification of applying punitive damages.On this basis,this paper tries to propose that punitive damages should be applied prudently at the principle level by giving full play to the effectiveness of the prior consultation procedure,fully justifying the necessity of application,and strictly grasping the constitutive elements of Article 1232 of the Civil Code.At the rule level,this paper believes that the base amount of punitive damages can be determined by the sum of period loss and permanent loss;the multiplier can be set flexibly within the framework of two times or less as stipulated in the Interpretation of the Supreme People’s Court on the Application of Punitive Damages in the Trial of Ecological and Environmental Tort Disputes(hereinafter referred to as the Judicial Interpretation);and the total amount of punitive damages can be considered in combination with the administrative fines and criminal fines suffered by the indemnifier in the previous period.It is suggested that the total amount of punitive damages should not be offset directly but should be balanced with the relationship between punitive damages and administrative and criminal fines by clarifying the subordination,in an attempt to better support the judicial practice of punitive destruction in the area of ecological and environmental destruction compensation and realize the unification of the normative and social effects of the law. |
