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The punitive compensation system is a civil damages compensation system in Anglo-American law. This is the compensation system corresponding to the compensation system and one of the controversial legal systems in Anglo-American law. The Consumer Protection Law, promulgated by China in 1993, for the first time established a punitive compensation system in the form of a special law, which is a major breakthrough in China's civil liability legislation. This article carefully considers and studies the theoretical basis, social functions, scope of application, and conditions of the punitive compensation system, with a view to enriching China s civil law theory and improving the civil damages compensation system.

Punitive damages system

The punitive compensation system is a civil damages compensation system in Anglo-American law. This is the compensation system corresponding to the compensation system and one of the controversial legal systems in Anglo-American law. The Consumer Protection Law, promulgated by China in 1993, for the first time established a punitive compensation system in the form of a special law, which is a major breakthrough in China's civil liability legislation. This article carefully considers and studies the theoretical basis, social functions, scope of application, and conditions of the punitive compensation system, with a view to enriching China s civil law theory and improving the civil damages compensation system.

Chinese name

Punitive damages system

Time

1993

Place

China

File

Consumer Protection Law

Overview

(I) Concept and legal characteristics of punitive damages system

Punitive damages refer to a type of damage compensation in which the civil subject violates the provisions of civil law and is awarded by the infringer to the victim through the court. Punitive damages should include at least the following meanings:

First, it is the responsibility of civil subjects under the premise of compensatory compensation;

Secondly, it is judged by the court, that is, whether punitive compensation is 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 awarded were paid by the civil subject to another equal civil subject, not to the state;

Fourth, in accordance with the provisions of the special civil law.

Punitive compensation is a civil compensation system corresponding to compensatory compensation. It has the general characteristics of civil compensation, but compared with the compensation compensation system, it also has the following unique characteristics:

First, punitive. The main purpose and function of compensatory damages is to make up for the losses suffered by the victims. The function of punitive damages is not to fill the losses of the victims, but to punish and punish the wrongdoers for their serious wrongdoing.

Second, additionality. In other words, punitive damages are an additional form of civil liability. Only when the compensation money is not enough to punish the malicious infringement of the offender, or it is not enough to show that the law fully denies such behavior, and to prevent it It can only be applied when it happens again.

Third, legality. Punitive damages are an exception and supplement to civil liability, and must have legislative provisions and jurisprudential rulings. Otherwise, punitive damages should not be considered as applicable, so as to prevent the judge from abusing his power and improperly punishing the defendant. The legitimate rights and interests have impacted the foundation of civil liability and internal harmony.

The punitive compensation system is a system with many differences in theory. Opponents believe that the punitive compensation system should be abolished for the following reasons:

First, the punitive compensation system confuses the distinction between public and private law.

Second, the amount of compensation established by the punitive compensation system is too high, and the law does not restrict it, which is likely to cause new unfairness.

Third, due to the shortcomings of the punitive compensation system itself, the application of punitive compensation system may lead to problems of over-prevention or under-prevention.

Regarding the above differences, experts have the following views:

First, whether to confuse the division of public and private law or whether it is a mixed system. Experts believe that the punitive compensation system is a civil legal system, not a mixed system, and does not violate the division of public and private law. It has the function of punishment and deterrence that does not violate the spirit of private law. Civil law is private law, not only has the function of compensation, but also has the function of punishment and deterrence. The civil liability stipulated in China's General Principles of Civil Law includes the form of liability with punishment factors such as exhortations and orders with remorse. It is inherent in civil law, and the punitive and deterrent functions of punitive compensation are only a further expansion and reflection of it. It is still a civil legal system.

Second, the reasonableness of the plaintiff's obtaining high punitive damages. Experts believe that the punitive compensation obtained by the plaintiff is reasonable. First, if the punitive compensation is not adopted, the plaintiff may not receive complete compensation. Second, litigation is a necessary measure to maintain effective deterrence of the tort system and implement punitive compensation. The system can encourage victims to prosecute actively and protect their rights through litigation.

(2) Comparison of punitive compensation systems at home and abroad

The punitive damages system of modern significance originated in the United Kingdom, and was subsequently accepted by the United States as common law. Commonwealth countries have followed suit. In a modern sense

First, the subject of the obligation of compensation, others cannot be the subject of punitive compensation. It should be noted here that the perspective of people who understand consumers as buying goods or receiving services just to satisfy their own consumption is too narrow. The meaning of consumers is quite broad, and it includes not only buying for their own needs. People who buy goods also include people who buy goods for the needs of collection, preservation, and giving away. They also include people who buy goods for family and friends, and buy daily necessities on behalf of others. Refers to people who purchase goods or receive services for non-profit purposes.

Second, the operator has provided fraudulent acts in the provision of goods or services. Regarding fraud, opinions differ. At present, Article 68 of the Opinions of the Supreme People's Court on the Implementation of the General Principles of the Civil Law of the People's Republic of China (for Trial Implementation) stipulates that "a party intentionally informs the other party of false information, or intentionally conceals the true situation, and induces the other party to make a mistake. If it expresses its intention, it can be regarded as fraudulent behavior. "Article 2 of the" Measures for Punishing Consumer Fraud "issued by the State Administration for Industry and Commerce on March 15, 1996 stipulates:" Consumer fraud as referred to in this Law refers to business operations. In the provision of goods or services, those who use false or other improper means to deceive or mislead consumers and damage their legitimate rights and interests. "

Third, punitive damages are based on consumers' actual losses. The question here is how to determine the actual consumer loss. Experts believe that consumers have to pay a certain price to purchase goods or services. If the goods or services obtained by paying a fixed price are unreal or the quality is defective, he will be harmed, including material loss, mental damage and other Intangible mental damage may require punitive damages.

Fourth, double claims must be made by the fraudulent consumer. Because the commitment of civil liability follows the principle of "ignoring the consequences", if the consumer does not make the request, the people's court cannot proactively pursue the operator's double compensation liability according to his powers.

(3) The Necessity and Feasibility of Establishing Punitive Compensation System in China

China's current compensation for damages is based on the principle of compensation for losses. Except for the Consumer Rights Protection Law, other laws have not provided for a punitive compensation system. The Consumer Rights Protection Law is a special law. Should this system be extended to other areas of damage compensation and made it a general system of damage compensation? Experts believe that it is necessary to establish a punitive compensation system in the field of damages in China.

First, the establishment of a punitive compensation system can effectively punish illegal acts and reduce the occurrence of vicious torts. At present, due to the incompleteness of consumer law in China, although many infringement cases are finally resolved through litigation, the amount of compensation is significantly lower than the plaintiff's claim. For the defendant, the sanctions are insufficient and it is difficult to prevent the infringement from happening again. The perpetrator's behavior has not reached the level of crime, and severe punishment for the perpetrator cannot be given by other means as a precaution. Even if some administrative means such as fines are used, the perpetrator is not given the punishment it deserves. Therefore, experts believe that the establishment of a punitive compensation system is necessary.

Second, China has established a punitive compensation system to give punitive compensation to those who subjectively take a hasty and disregarding infringement on others, which is conducive to punishing the perpetrator and comforting the victim, thereby achieving social fairness and justice. For example, in the field of product quality, product liability is strict liability. Although fault is not a component of product liability, it can play a role in determining the punishment of the responsible person. In this case, mechanical compensation based on price is not enough to punish the responsible person. Is not enough to comfort the victim. For producers and sellers with strong financial resources, there is no deterrent and preventive effect at all. Therefore, experts believe that the establishment of a punitive compensation system and the punishment of punitive damages to manufacturers that ignore consumer safety and social benefits are conducive to punishing evil and promoting good, and restore social justice.

Third, the establishment of a punitive compensation system is a requirement of socialist market economy and social development. The Consumer Rights Protection Law promulgated by China in 1993 set a precedent for punitive compensation systems, but the object of this law adjustment is the consumption between the operator and the consumer in purchasing, using goods or receiving services for living consumption. Relationship, this consumption relationship is narrow, not a consumption relationship in a broad sense, that is, it does not include purchase for productive consumption demand. In the current form of social and economic development, such regulations are no longer able to meet the needs of protecting the basic rights and interests of consumers and achieving overall social harmony, and should be further adjusted.

Fourth, the establishment of a punitive compensation system is conducive to the convergence of China's legal system with relevant foreign legal systems. Chinese law belongs to civil law. The traditional compensation system uses homogeneous compensation. However, with the development of the economy and the integration of the international economy, especially after China has joined the WTO, China's exchanges with Anglo-American law countries have continued to be closer, and a large number of foreign goods Entering China, disputes over product quality responsibility and protection of consumer rights and interests continue to occur, especially the surge in international consumer behavior. Without a punitive compensation system, Chinese consumers and victims are often in a disadvantageous passive position.

(IV) Assumption of Establishing Punitive Compensation System in China

The punitive compensation system is currently only reflected in the Consumer Rights Protection Law, and there are no general provisions on punitive compensation systems in the General Principles of the Civil Law. As a legal liability, punitive liability is not universal in Chinese civil legislation. However, as a special law, the Consumer Protection 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.

Experts believe that when China enacts a civil code in the future, it should take the punitive damages system as an integral part of the liability for damages and make it clear. In formulating the special civil law, the legislative experience of the Consumer Protection Law can be used for reference, and the application of punitive damages should be clearly stipulated in the special law. At present, in addition to the Consumer Rights Protection Law, punitive damages can be provided in the special civil law. The areas of product quality, anti-unfair competition, personal rights and some contracts can also provide for the application of the Consumer Rights Protection Law. It should be expanded to areas such as real estate, medical accidents, and shared services.

In short, the establishment of punitive compensation system in China is a major breakthrough in China's civil legislation. It should be adhered to and actively promoted, especially in the protection of consumer rights. It should be resolutely applied to encourage consumers to engage in fraud and counterfeit and shoddy goods. Struggle, encouraging the whole society to actively participate in anti-counterfeiting actions, and establishing a punitive compensation system are also the needs of China s socialist market economy and social development, as well as the needs of consumer protection in many areas under the conditions of a socialist market economy.