外国惩罚性损害赔偿判决的承认与执行——以大陆法系国家司法实践为考察对象

On Recognition and Enforcement of Foreign Punitive Damages Judgments:From the Perspective of Judicial Practices in Civil Law Countries

惩罚性损害赔偿制度在大陆法系不同国家中的接纳程度大相径庭,各国对于外国法院所作出的惩罚性损害赔偿裁决的承认与执行的态度也各不相同。对于惩罚性赔偿金的性质,各国一般倾向于不直接认定为刑罚性质,但对惩罚性损害赔偿裁决一般均通过在公共秩序审查环节予以限制,德国和日本最高法院目前整体性认为损害赔偿裁决违反本国公共秩序,法国和意大利则认为其本身并不违反国际公共秩序,但通过比例原则予以审查。中国可以在采取分割承认与执行的基础上,对于超出实际损失部分的惩罚性赔偿金根据比例原则进行逆向推论下的利益均衡审查。

It is quite controversial that to what extent that the punitive damages judgments rendered by foreign countries could be recognized and enforced by the required country.According to the judicial practices in the main civil law countries,the punitive damages judgments are likely to be characterized as the civil nature instead of the penalty nature.On the other hand,the foreign punitive damages judgment is not,per se,contrary to public policy in France and Italy while be deemed in Germany and Japan.The foreign punitive damages judgments are refused to be enforced due to its breach of the fundamental public policy or it does not conform to the doctrine of proportionality.It is argued that the punitive damages judgments should be distinguished to compensative and punitive parts which the former part could be enforced by the required country to the extent that it would be rendered according to its domestic law.China may basically take the division approach to enforce the punitive damage judgments to the extent which belongs to the actual loss or harm suffered and to take the doctrine of proportionality to assess the interest balance of the excessive punitive damages.