How to improve China s punitive damages system or the current situation of China s punitive damages

Punitive damages refer to the additional compensation in the damages that exceed the scope of the actual losses suffered by the infringed party or the non-breaching party to the contract, that is, after the actual loss of the Chinese shirt is compensated, a certain amount or a certain multiple of the compensation is added. Through the intimidation effect of the infringer, it has a preventive effect on the infringer itself and the general public, and reduces the incidence of illegal acts that infringe on the rights and interests of others.

Article 1185 of the Civil Law of the People's Republic of China: Where the intellectual property rights of others are intentionally infringed upon, and the circumstances are serious, the infringed party has the right to request corresponding punitive damages. Article 1207 of the Civil Code of the People's Republic of China: Where a product is produced or sold knowing that it is defective, or where it fails to take effective remedial measures in accordance with the provisions of the preceding article, causing death or serious damage to the health of others, the infringed party has the right to request corresponding punitive damages.

1. Compensation function. Compensatory damages can compensate for part of the victim's losses to a certain extent, but they do not provide adequate remedies for certain damage that is not easily estimated (mental damage, life, physical disability), which brings greater harm to the victim. Punitive damages, on the other hand, can allow the victim to obtain more comprehensive remedies.

2. Sanction function. Compensatory compensation is only an equivalent compensation for the apparent actual loss suffered by the victim, and it seems that the loss is as much as it takes. For the wrongdoer, compensation is only a kind of consideration compensation for the losses caused to others, but does not punish his own illegal acts, and does not cause the offender to suffer the pain of sanctions, so it does not play the role of sanctioning and punishing the perpetrator.

Punitive damages, on the other hand, sanction the wrongdoer by imposing a heavier economic burden on the wrongdoer and making him bear compensation beyond the actual loss of the victim, so as to increase the cost of violating the law, so that the perpetrator can never forget it and achieve the effect of sanctions.

3. Containment function. Punitive damages are not only to severely punish the perpetrator's deliberate or malicious behavior, but also to warn others and have a deterrent effect on ordinary people in society. Containment has nothing to do with the responsibility of a single person, but rather the identification of a model from which others learn from it and do not engage in the same behaviour again.

Among the three functions of punitive damages, compensation is the starting point, sanctions are the means, and containment is the ultimate goal.

1. The social basis of punitive damages.

1. The law is to serve the society and meet the needs of the society, so when the law cannot meet the needs of the society, we must revise the law or transplant new laws.

2. Punitive damages are inseparable from the current situation of economic and social development from generation to development. Because China is still in the initial stage of socialism, some social relations have not yet been straightened out, especially some parts of the market economy are still not perfect, so that there are many cases of malicious infringement in China's civil life, and there are many illegal acts of public infringement accompanied by private victimization, such as fraud, in commercial behavior. For example, maliciously assaulting others; the proliferation of counterfeit and shoddy goods; frequent product liability accidents and drug safety accidents; Environmental pollution is becoming more and more serious, and so on.

II. The Concept and Legal Characteristics of the Punitive Damages System.

Punitive damages refer to a kind of damages awarded by the court for the infringer to the infringed party in excess of the actual losses in violation of civil laws. Punitive damages should include at least the following meanings:

1) It is the liability of the civil subject on the premise of bearing compensatory damages;

2) it is sentenced 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;

3) the punitive damages awarded are paid by the civil subject to another equal civil subject, rather than to the state;

4) In accordance with the provisions of the Special Civil Law.