Source: China Paper Download Center Author: Fan Hongtao
Punitive compensation system is a kind of civil compensation system in Anglo-American law, a kind of compensation system corresponding to compensatory compensation system, and also one of the controversial legal systems in Anglo-American law. The Consumer Protection Law promulgated by China 1993 establishes the punitive damages system in the form of special law for the first time, which is a major breakthrough in China's civil liability legislation. In this paper, the theoretical basis, social function, scope of application and conditions of punitive damages system are seriously considered and studied in order to enrich the theory of civil law in China and improve the civil compensation system.
I. Overview of punitive damages system
(A) the concept and legal characteristics of punitive damages system
Punitive damages refer to damages awarded by the court to the infringed person by the civil subject who violates the civil law, which exceeds the actual loss. Punitive compensation should at least include the following meanings: first, the civil subject responsibility under the premise of compensatory compensation; Second, it is decided by the court, that is, whether punitive damages are applicable to a specific case must be made by the people's court in the form of a judgment, and the parties cannot agree in advance; Third, the punitive damages of the judgment are paid by the civil subject to another equal civil subject, not to the state; Fourth, according to the provisions of the special law of civil law.
Punitive compensation is a kind of civil compensation system corresponding to compensatory compensation, which has the general characteristics of civil compensation, but compared with compensatory compensation system, it also has the following unique characteristics:
First, punitive. The main purpose and function of compensatory compensation is to make up for the losses suffered by the infringed, while the function of punitive compensation is not to make up for the losses of the victims, but to punish and punish the perpetrators for their serious faults.
Second, additionality. In other words, punitive damages are an additional form of civil liability, which can only be applied when compensatory damages are not enough to punish malicious infringement, or to show that the law fully denies this behavior and prevents it from happening again.
Third, legitimacy. Punitive damages are an exception and supplement to civil liability, and there must be legislative provisions and judicial rulings. Otherwise, it should be regarded as not allowing punitive damages to be applied, so as not to cause improper punishment of judges for abusing their powers, infringe on the legitimate rights and interests of defendants, and then impact the foundation and internal harmony of the whole civil liability.
Punitive compensation system is a system with many theoretical differences. Opponents believe that the punitive damages system should be abolished for the following reasons: first, the punitive damages system confuses the division between public law and private law; Second, the amount of damages established by punitive damages system is too high, and the law does not restrict it, which is easy to produce new unfair phenomena. Thirdly, due to the defects in the construction of punitive damages system itself, the application of punitive damages system may lead to excessive or insufficient prevention.
For the above differences, the author has the following views:
First, is it confusing the division of public law and private law or mixed system? The author thinks that punitive damages system is a civil legal system, not a mixed system, which does not violate the division between public law and private law, and its punishment and deterrent function does not violate the spirit of private law. Civil law is a private law, which not only has the function of compensation, but also has the function of punishment and deterrence. The civil liability stipulated in the General Principles of the Civil Law of our country includes the forms of liability with punishment factors, such as admonition and order to make a statement of repentance. Therefore, the functions of punishment and deterrence are inherent in civil law, and the functions of punishment and deterrence of punitive damages are only further expanded and embodied, and it is still a civil legal system.
Second, the rationality of the plaintiff's high punitive damages. The author believes that the punitive damages obtained by the plaintiff are reasonable. First, if punitive damages are not taken, the plaintiff may not get full compensation; Secondly, litigation is a necessary measure to maintain the effective deterrence of infringement system. The implementation of punitive damages system can encourage victims to actively sue and safeguard their rights through litigation.
(B) Comparison of Chinese and foreign punitive damages systems
The modern punitive damages system originated in Britain, and was later regarded as common law by the United States, and the British and American federal countries followed suit. The earliest recorded case of punitive damages system in modern Britain was in 1763. After continuous development, in recent years, the British theoretical and practical circles have adopted a more positive attitude towards punitive damages, advocated expanding the scope of application of punitive damages, and believed that the punitive damages system should be widely applied to civil litigation. In the United States, it is generally believed that the punitive damages system was first confirmed in 1784. By the middle of 19 century, punitive damages gradually became an indispensable part of American tort law and was widely adopted by courts. In the sixties and seventies, punitive damages were widely applied to product liability, and the amount of compensation was increasing. After the mid-1980s, the United States launched a critical movement against punitive damages, and the application of punitive damages in product liability gradually declined.
In Germany, Japan, Switzerland and other representative civil law countries, although there is no punitive damages system, the judgments made by foreign courts with punitive damages are not recognized and enforced, but tend to adopt the way of case review and differential treatment, and conditionally recognize and enforce the judgments made by foreign courts.
Punitive damages system has not been clearly defined in our laws until the promulgation of 1993 Law on the Protection of Consumers' Rights and Interests. Article 49 of the law stipulates: "If a business operator commits fraud in providing goods or services, it shall increase the compensation for the losses it has suffered according to the requirements of consumers, and the increased amount shall be twice the price of the goods purchased or the cost of receiving services." This provision draws lessons from the punitive damages system of Anglo-American law, and double compensation is not compensatory compensation, but punitive compensation.
Traditional civil law in Taiwan Province belongs to continental law system, and there is no punitive damages system. In recent ten years, the punitive damages system has aroused widespread concern in Taiwan Province, China, and has been adopted by some special civil laws.
(C) the value and function of punitive damages system
Value is a universal relationship between subject and object in human life in philosophy, that is, the relationship between the existence, function and development of object and the need and development of subject. The legal value is an objective reflection that the law meets people's subjective needs. The author thinks that the most fundamental value goal of punitive damages system is to maintain social substantive justice, and the legal value of punitive damages system is substantive justice, including freedom, equality, efficiency and order.
Freedom can only exist under the premise of law, and there is no freedom to do whatever you want. The value of legal freedom is precisely reflected in increasing freedom on the one hand and restricting freedom on the other. Punitive damages protect the victim's freedom and punish the offender to limit or deprive him of his freedom, which embodies the free value of law.
Equality is a social relationship in which people treat each other equally, and it is an important value and goal of law. The equal value of modern civil law emphasizes substantive equality. In the compensation for damages, the compensation principle of homogeneous compensation should be revised to realize the substantive equality of law. Punitive damages system embodies this basic value of law. When the injurer makes an act that harms the interests of others with great efforts, the law will punish him in time and make him bear heavier responsibilities, so as to appropriately deprive the injurer of some equal rights, protect the interests of the victim, and make the rights of the victim get equal protection and return to the original equal state.
Efficiency is a value pursued by punitive damages, and punitive damages also reflect the value orientation of efficiency. Efficiency encourages risky behavior in which the gains outweigh the losses. At the same time, efficiency should discourage risk-taking. While protecting consumers' rights and interests, enterprises are encouraged to pursue the maximization of their own interests and realize the improvement of social welfare. The essence of punitive damages system in modern society lies in promoting the improvement of welfare.
In the process of social development, order is a necessary condition for human survival and a requirement of social development. Law is an important means to maintain order, and various compensation systems are designed to meet the requirements of order. By exerting the deterrent effect of punitive damages, one person will not infringe on others. If this kind of infringement happens, the injurer will be punished, thus restoring the abnormal social order.
Freedom, equality, efficiency and order all reflect the substantial justice value of punitive damages, which is the legal value of punitive damages system.
The function of law refers to the internal performance or function of law as a special social norm. It is a kind of potential ability based on the attribute, internal factors and structure of law. Punitive compensation system is an exceptional compensation system besides the general damage compensation system, which has its unique function.
Punitive damages have the function of punishing or sanctioning the injurer. It mainly punishes intentional or malicious illegal acts and imposes a heavier economic burden on offenders. The application of punitive damages system can not only compensate the victims of civil tort, but also make the injurer bear greater economic pressure, achieve the effect of sanctions, prevent the recurrence of illegal acts and maintain social and economic order.
Preventive function is a reasonable explanation of punitive damages in traditional theory. The preventive function of punitive damages mainly has two meanings: first, it is called special prevention to prevent a specific criminal in a case from continuing or repeating his illegal behavior; Secondly, it is called general prevention to prevent other and potential perpetrators from committing such illegal acts.
Punitive damages have the function of encouraging trading, which can encourage market trading, because it makes potential infringers realize that trading is more cost-effective than infringement and encourages potential infringers to trade.
Second, the constitutive requirements and scope of application of punitive damages
(A) the elements of punitive damages
As a special civil liability, punitive damages are consistent with traditional compensatory damages in causality and damage facts. But there are also some differences, that is, illegal behavior and subjective intention are required. The author believes that the constitutive elements of punitive damages include: illegal behavior, subjective intention and damage facts, and there is a causal relationship between illegal behavior and damage facts. This paper focuses on two elements: illegal behavior and subjective intention.
An illegal act refers to an act or omission that infringes on the rights and interests of others. Both acts and omissions can become illegal acts. For example, the fraud stipulated in Article 49 of China's Consumer Protection Law is a typical illegal act. Liang Huixing, a scholar in China, believes that fraud refers to the act of fabricating, changing and concealing facts in order to make the deceived fall into wrong judgment or deepen and maintain their own mistakes. Keeping silent about the obligation of informing stipulated by law, custom or contract should constitute fraud. Therefore, fraud not only includes the operator actively fabricating false information or distorting facts, but also deliberately concealing real information, and has the obligation to inform consumers but not to inform them.
The so-called intention refers to the subjective psychological state that the actor hopes or lets his behavior cause damage to others' personal or property. It includes two meanings: first, the actor foresees the consequences of the behavior; Second, he hoped or let the consequences happen. Hope refers to the efforts of the actor to pursue the consequences of his behavior through certain behaviors; Laissez-faire means that although the actor doesn't want the consequences of his behavior to happen, he doesn't take measures to avoid the occurrence of damage, which leads to the occurrence of damage consequences. Intentional subjective faults are often manifested as external behaviors that cause great harm to society, such as civil fraud and intentional infringement of patent rights.
(B) the scope of application of punitive damages
The author believes that as long as the above-mentioned constitutive requirements are met, the punitive damages system can be applied to the field of infringement, and in principle, it can also be applied to the field of contract, but certain restrictions should be made. It is limited to the following scope: First, the intentional breach of contract stipulated in the second paragraph of Article 1 13 of the new contract law. Second, breach of contract due to gross negligence. Third, in some special contractual relationships, punitive damages are applicable regardless of fault or not. Some courts in the United States apply punitive damages to cases of breach of contract, such as the relationship between banks and depositors, employers and employees, lawyers and parties, on the grounds that one party to the contract has strong trading strength and the other party cannot compete with it. Fourth, punitive damages can also be applied in some cases, that is, when the breaching party has the opportunity to easily evade responsibility.
Consideration of punitive damages
The principle of determining punitive damages is moderate deterrence. The author believes that according to the principle of moderate prevention, the amount of punitive damages should generally be considered from the following aspects.
The defendant's financial situation. The defendant's property status is the first factor that the court should consider when sentencing punitive damages and determining the amount. Because the purpose of punitive damages is not only to compensate the plaintiff, but also to punish the defendant, the adjudicator should determine the amount of compensation according to his economic ability.
Actual loss. The author believes that punitive damages should generally be determined on the basis of actual losses, according to a certain proportion and considering other factors. Actual losses are generally determined according to the general principles of civil law, including losses suffered, loss of interests and non-property losses.
In addition, several factors should be considered: first, the degree of fault of the defendant's behavior; Second, whether the defendant's behavior is easy to escape punishment; Third, the potential harm. Theoretically, the greater the potential harm, the higher the punitive damages, because some behaviors did not cause harm at that time, but they were extremely dangerous behaviors. If the punishment is mainly based on actual harm, it is not enough to stop such behaviors.
Third, the construction of China's punitive damages system
(A) Analysis of Article 49 of China's Consumer Protection Law
Article 49 of China's Law on the Protection of Consumers' Rights and Interests stipulates: "If an operator commits fraud in providing goods or services, it shall increase the compensation for the losses suffered by consumers as required, and the amount of compensation shall be twice the price of the goods purchased by consumers or the cost of receiving services." This provision absorbs the theory of punitive damages in Anglo-American law and belongs to punitive damages rather than compensatory damages. It is intended to encourage consumers to crack down on fraud and counterfeit goods through the other requester, so as to safeguard the interests of all consumers from being infringed.
According to the provisions of China's Consumer Protection Law, the application of punitive damages in consumer protection should generally meet the following conditions:
First of all, the legal subjects of punitive damages are operators and consumers. Consumers are the subject of claims, operators are the subject of punitive damages, and others cannot be the subject of punitive damages. It should be noted here that it is too narrow to understand consumers as people who buy goods or receive services only to meet their own consumption. The meaning of consumer itself is quite broad, including not only those who buy goods for their own needs, but also those who buy goods for collection, preservation and giving away, as well as those who buy goods for family and friends and buy daily necessities for others. Refers to people who buy goods or receive services for non-profit purposes.
Second, the business operators are fraudulent in providing goods or services. People have different views on fraud. At present, Article 68 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) (Trial) stipulates that "if one party intentionally informs the other party of false information or intentionally conceals real information, it can be considered as fraud." 1March, 99615th, the state administration for industry and commerce issued the "measures for punishment of consumer fraud", in which article 2 stipulates: "consumer fraud as mentioned in this law refers to the behavior of business operators who deceive and mislead consumers by false or other improper means and harm their legitimate rights and interests when providing goods or services."
Third, punitive damages are based on the premise that consumers have actual losses. The problem here is how to identify the actual loss of consumers. The author believes that consumers have to pay a certain price when buying goods or receiving services. If the goods or services obtained by paying a fixed price are untrue or have defects in quality, they will be damaged, including material losses, mental damage and other intangible mental damage, and punitive damages can be claimed.
Fourthly, double indemnity's demands must be made by deceived consumers. Because the commitment of civil liability follows the principle of "no prosecution, no concern", if the consumer does not make this request, the people's court cannot actively pursue the responsibility of the operator double indemnity ex officio.
(B) the necessity and feasibility of establishing a punitive damages system in China
At present, China's damage compensation is based on the principle of compensation for losses, and there is no punitive compensation system in other laws except the Consumer Protection Law. The Consumer Protection Law is a special law. Should this system be extended to other fields of damage compensation and become a general system of damage compensation? The author believes that it is necessary to establish a punitive compensation system in the field of damage compensation in China.
First of all, the establishment of punitive damages system can effectively punish illegal acts and reduce the occurrence of vicious infringement. At present, due to the imperfection of China's consumer rights protection law, although many infringement incidents are finally resolved through litigation, the compensation amount is obviously lower than the plaintiff's appeal. For the defendant, the sanctions are not strong enough to prevent the recurrence of the infringement. The behavior of the perpetrator did not reach the level of crime, so it is impossible to give severe punishment to the perpetrator in other ways as a precaution, that is, the use of some administrative means such as fines did not make the infringer get the punishment he deserved. Therefore, the author thinks it is necessary to establish a punitive damages system.
Secondly, the establishment of China's punitive damages system will give punitive damages to those who subjectively take reckless and indifferent attitude towards others, which is conducive to punishing the perpetrators and comforting the victims, thus realizing social fairness and justice. For example, in the field of product quality, product liability is strict. Although fault is not a component of product liability, it can play a certain role in determining the punishment for the responsible person. In this case, it is not enough to punish the responsible person or comfort the victim mechanically. For producers and sellers with strong financial resources, it can not play a deterrent and preventive role at all. Therefore, the author believes that the establishment of a punitive compensation system to punish those manufacturers who ignore consumer safety and social interests is conducive to punishing evil and promoting good and restoring social justice.
Third, the establishment of punitive damages system is the need of socialist market economy and social development. China's 1993 law on the protection of consumers' rights and interests initiated the punitive damages system, but the object of this law is the consumption relationship between operators and consumers in the process of purchasing, using goods or receiving services in their daily consumption. This consumption relationship is narrow, not broad, that is, it does not include purchases for productive consumption needs. In the current form of social and economic development, this provision can no longer meet the needs of protecting consumers' basic rights and interests and achieving overall social harmony, and should be further adjusted.
Fourthly, the establishment of punitive damages system is conducive to the integration of China's legal system and foreign related legal systems. Our country's law belongs to the continental law, and the traditional compensation system adopts the homogeneous compensation method. However, with the development of economy and the integration of international economy, especially with China's accession to the WTO, China's ties with common law countries are getting closer and closer, a large number of foreign goods have entered China, and disputes over product quality responsibility and consumer rights protection have occurred constantly, especially the sharp increase in international consumption behavior. If the punitive damages system is not established, consumers and victims in China are often in an unfavorable and passive position.
(C) the idea of establishing a punitive damages system in China.
At present, China only embodies the punitive damages system in the Consumer Protection Law, but there is no general provision on the punitive damages system in the General Principles of Civil Law. As a kind of legal responsibility, punitive damages are not common in our civil legislation. However, the consumer protection law, as a special law, needs the support of ordinary civil law. For Article 49 of the Consumer Protection Law, the coordination of relevant rules in the civil liability system is indispensable.
The author thinks that when our country formulates the civil code in the future, the punitive damages system should be regarded as an integral part of the liability for damages and clearly stipulated. When formulating a special civil law, we can learn from the legislative experience of the Consumer Protection Law and make clear provisions on the application of punitive damages in the special law. At present, in the special civil law, punitive damages can be stipulated not only in the Consumer Protection Law, but also in the fields of product quality, anti-unfair competition, personal rights and some contracts. The scope of application of Consumer Protection Law should be extended to real estate, medical malpractice and service industry.
In short, the establishment of punitive damages system in China is a major breakthrough in China's civil legislation, which should be adhered to and actively promoted, especially in protecting consumers' rights and interests, so as to encourage consumers to crack down on fraud and counterfeit and shoddy goods and encourage the whole society to actively participate in anti-counterfeiting actions. The establishment of punitive damages system is also the need of China's socialist market economy and social development, and it is also the need to protect consumers' rights and interests in many fields under the conditions of socialist market economy.
Injection and release
Ma: Principles of Damage Compensation Law, Law SeriesNo. 16 1, page 46.
(2) Chen: The Development Trend of Punitive Bribery in America, Legal Theory of Hefei University, Vol. 27,No. 1, p. 233.
(3) Chen: "The Development Trend of Punitive Bribery in America", Law Theory of Hefei University, Vol.27,No. 1, No.241.
④ Xu: Consumer Protection Law, Beijing; Law Press, 1997, p. 3 19.
⑤ Lu Yun: Basic Theory of Law, Beijing: China University of Political Science and Law Press, 1994, p. 19 1 p.
⑥ Lu Yun, editor-in-chief: Basic Theory of Law, Beijing; China University of Political Science and Law Press 1994, p. 43.
⑦ Liang Huixing: General Introduction to Civil Law, Beijing; Law Press, 1997, p. 170.
Main references
1. Chen: the development trend of punitive damages in the United States, National Taiwan University Law Series, Vol. 27,No. 1.
2. Ma: Principles of Damage Compensation Law, Law SeriesNo. 16 1.
3. Xu: Consumer Protection Law, Beijing; Law Press 1997 Edition
4. Lu Yun, editor-in-chief: Basic Theory of Law, Beijing: China University of Political Science and Law Press 1994.
5. Liang Huixing: General Introduction to Civil Law, Beijing; Law Press 1997 Edition