Study On Punitive Damages In The Law Of Consumer Protection

China’s punitive damages system was first stipulated in the consumer protection law(hereinafter referred to as the consumer protection law).Since the issuance of the Supreme People’s court’s No.17 guiding case,the punitive damages system has been widely applied to automobile consumption contract disputes.Although the system has played an important role in maintaining the order of market transactions and protecting the legitimate rights and interests of consumers,when the court applies the system to solve disputes over automobile consumption contracts,the phenomenon of different judgments in the same case occurs frequently,which is mainly reflected in the court’s different understanding of the constituent elements of fraud and the calculation method of punitive damages.In this regard,the academic community has launched a heated discussion,but has not yet reached a theoretical consensus.This article will focus on the first paragraph of Article 55 of the consumer protection law,through the legal analysis of the main controversial issues reflected in the typical cases,to clarify the identification standard of fraud and the calculation method of punitive damages,and put forward the unified judgment rules for related cases.The first chapter puts forward two controversial issues to be demonstrated in this paper from the perspective of three typical cases in the field of automobile consumption contract disputes.This paper argues that there are two urgent problems to be solved in judicial practice around the understanding and application of the first paragraph of Article 55 of the consumer protection law.First,how should fraud be identified in order to achieve a fair judgment result.The determination of fraud is the premise for the court to support the plaintiff’s claim for punitive damages.Therefore,it is very important to clarify the constituent elements of Article 55,paragraph 1,of the consumer protection law.Second,although the current law clearly stipulates that the amount of punitive damages is calculated by three times the price or service fee,in judicial practice,some judges often do not strictly implement the legal provisions,but make full use of their discretion to make appropriate modifications to the calculation method.Therefore,how to calculate the amount of punitive damages has become a controversial issue.The second chapter focuses on the legal analysis of the above two controversial issues.First of all,after analyzing the legislative background,legislative process and characteristics of the first paragraph of Article 55 of the consumer protection law,it is believed that this article has the exclusive characteristics of punitive compensation system,such as punishment,deterrence and incentive.Secondly,through the comparative analysis of the fraud code in the consumer protection law and the civil fraud code,it is believed that there are obvious differences between the two in the value,adjustment object and legal effect,so it is not appropriate to equate the two.Thirdly,with the help of textual interpretation and other interpretation methods,this paper analyzes the constituent elements of fraud in the consumer protection law and believes that there are two constituent elements of fraud.The first element is that the operator objectively exists fraud;The second element is that the operator should have the possibility to criticize subjectively,that is,to have the intention of "fraud",and to exclude gross negligence.Finally,by combing the judgment ideas of the court,we can find that there are two ways to calculate the amount of punitive damages in practice.The first is to calculate the amount of compensation in strict accordance with three times the total price of the car,and the second is to calculate the amount of compensation based on the price of the car.This paper argues that judges should start from the purpose and function of punitive damages system,strictly follow the will of legislators,and calculate the amount of punitive damages by three times the cost of products or services.The third chapter focuses on the application of the first paragraph of Article 55 of the consumer protection law,and puts forward suggestions for improvement.First of all,it is necessary to clarify the constitutive requirements of fraud in Article 55, paragraph 1,of the consumer protection law by issuing corresponding judicial interpretations and guiding cases;Secondly,as for how to calculate the amount of punitive damages in the first paragraph of Article 55 of the consumer protection law,under the framework of the current law,judges should overcome the impulse of discretion and strictly follow the position of the current law.On this basis,in order to better apply the provisions of the first paragraph of Article 55 of the consumer protection law,legitimize the exercise of judges’ discretion,and better integrate the situation of the case.This article believes that the legal provisions should be amended by adding "the following" after the compensation amount in the original provisions,that is,"the amount of compensation increased is less than three times the price of goods or services".At the same time,the court can calculate the amount of punitive damages by combining the following elements.The first element is whether the fraudulent acts of operators cause physical damage or economic damage to consumers;The second element is the degree of subjective malice of operators;Element 3: whether the operator has repeated illegal acts;Element 4: give consideration to the proportional relationship between compensation and administrative penalty or criminal fine.