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On Legislation of Punitive Damages

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Legislation of Tort Liability Law in China

Abstract

The system of punitive damages is a special system of civil damages under the U.S. legal system, which is quite different from the system of compensatory damages. Punitive damages are paid in excess of the plaintiff’s actual injuries and are intended to punish and deter serious infringement. Yet, it has always been a controversial system under the common law legal system since it may challenge the constitutionality and it allows excessive compensation. Although it has produced certain influences on the civil law legal system, all these influences are limited in theoretical discussions, and it has not been widely recognized by those countries since they apply the principle of parity compensation in the area of civil damages.

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Notes

  1. 1.

    With respect to the establishment and development of mental damage compensation system, see Zhang (2009).

  2. 2.

    The Compact English-Chinese Dictionary of Anglo-American Law, at 1120 (The Law Press, 2003).

  3. 3.

    Article 49 of the Law of the PRC on Protection of Consumers Rights and Interests stipulates that “Business operators engaged in fraudulent activities in supplying commodities or services shall, on the demand of the consumers, increase the compensations for victims’ losses; the increased amount of the compensations shall be two times the costs that the consumers paid for the commodities purchased or services received.”

  4. 4.

    Article 113(2) of the Contract Law of the PRC stipulates that “The business operator who commits default activities in providing to the consumer any goods or services shall be liable for paying compensation for damages in accordance with the Law of the People’s Republic of China on Protection of Consumer Rights and Interests.”

  5. 5.

    Article 8 of the Interpretation of the Supreme People’s Court on the Relevant Issues concerning the Application of Law for Trying Cases on Dispute over Contract for the Sale of Commodity Houses stipulates that “In case of any of the following circumstances, which causes the purpose of a contract for the sale of commodity houses unable to be realized, the buyer who is unable to obtain the house may request the rescission of the contract, refund of the already paid money for purchase of the house and the interest thereof, as well as the compensation for losses, and may also request that the seller should bear the liability for compensating no more than one time of the already paid money for purchase of the house: (a) after the contract for the sale of commodity houses is concluded, the seller mortgages the house to a third person without notifying the buyer; and (b) after the contract for the sale of commodity houses is concluded, the seller sells the house to a third person.”

  6. 6.

    Article 9 of the Interpretation of the Supreme People’s Court on the Relevant Issues concerning the Application of Law for Trying Cases on Dispute over Contract for the Sale of Commodity Houses stipulates that “Where any of the following circumstances occur when a Seller concludes a contract on purchase and sale of commodity premises, rendering the contract invalid, revoked, or terminated, the buyer may request the return of the purchase price already paid with interest thereon and the compensation for losses, and may also request compensation by the Seller in an amount not exceeding one time the purchase payment that has been paid: (a) The Seller deliberately conceals the fact that it has not obtained a commodity premises pre-sale permit or provides a false commodity premises pre-sale permit; (b) The Seller deliberately conceals the fact that the premises being sold have already been mortgaged; or (c) The Seller deliberately conceals the fact that the premises being sold have already been sold to a third party or designated as premises for compensation and relocation.”

  7. 7.

    Wang (2000a).

  8. 8.

    Liang (2001).

  9. 9.

    Gu et al. (2000).

  10. 10.

    Cheng Xiao, Tort Compensation Liability on False Statement of Securities Market, at 32–41 (China Renmin University Ph.D. Dissertation).

  11. 11.

    Rogers (2002).

  12. 12.

    Id.

  13. 13.

    Wang (2003).

  14. 14.

    Id.

  15. 15.

    Id.

  16. 16.

    Id.

  17. 17.

    Id.

  18. 18.

    Cheng and Zhao (2007).

  19. 19.

    Wang (1998).

  20. 20.

    Zhou and Guo (2004).

  21. 21.

    Wang (2003).

  22. 22.

    Id.

  23. 23.

    Lapinski (2001).

  24. 24.

    Clements (1992).

  25. 25.

    Epstein (2003).

  26. 26.

    Chen Congfu, The Punitive Damage System in the US, 25 Taiwan Local Journals.

  27. 27.

    Zhang (2005).

  28. 28.

    Wang(2000b).

  29. 29.

    Wang (2003).

  30. 30.

    Wang (2000d).

  31. 31.

    Wang (2000a).

  32. 32.

    Wang (2000c).

  33. 33.

    Wang (2000a).

  34. 34.

    Posner (1997).

  35. 35.

    Wang (1992).

  36. 36.

    Li (2003).

  37. 37.

    (1) degree of the infringer’s fault, unless the law provides otherwise; (2) specific information regarding the means and place of the harm and the manner of the act of harm; (3) consequences of the act of tort; (4) information regarding the benefits obtained by the infringer; (5) the infringer’s financial ability to bear liability; and (6) average living standard in the area where the court accepting the case is located. Where any law or administrative regulation contains specific provisions on the amount of compensation for disability or death, such provisions shall apply.

  38. 38.

    Wang (2003).

  39. 39.

    Chen Congfu, Punitive Damage Compensation in the US, volume 31, Legal Science Review.

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    Xinbao Zhang

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Zhang, X. (2018). On Legislation of Punitive Damages. In: Legislation of Tort Liability Law in China. Springer, Singapore. https://doi.org/10.1007/978-981-10-6961-1_19

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  • DOI: https://doi.org/10.1007/978-981-10-6961-1_19

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