我国引入惩罚性赔偿的理论障碍批判

Criticism on the Theory Obstacle of Punitive Damages in Our Country

惩罚性赔偿是英美法上的一个特有制度, 我国在引入这一制度过程中出现了理论障碍, 认为它混淆了公法与私法的划分, 违背了民事责任的补偿性原则, 与罚金和罚款的功能相同, 并使受害人获得了不当得利。其实, 这些理论障碍是值得商榷的: 公法与私法的划分向来就不是泾渭分明的, 也就没必要追求两者的精细划分并以此作为反对惩罚性赔偿的理由; 民事责任的补偿性原则在现代社会需要进行修正, 惩罚性赔偿可以弥补民事责任预防不足的缺陷且具有罚金和罚款不可替代的功能; 法律设定惩罚性赔偿金的目的是在保护弱者合法权益的基础上更好地实现完全补偿原则, 与不当得利制度的设立宗旨并不矛盾。

Punitive damages is a peculiar system on the Common Law, the theory obstacle has appeared in the course of introducing this system in our country. Think that it has obscured the division of the public law and private law, has violated the compensation principle of civil liability, has the same function as fine and criminal fine, and make victims obtain unjust benefit. In fact, these theory obstacles are worth discussing: The division of public law and private law does not always make a clear distinction between good and evil, it is not essential to pursue the meticulous division of the two and regard this as the reason which objected to punitive damages too; The compensation principle of civil liability should be revised in the modern society, punitive damages can remedy the insufficiency of civil liability on preventing function and has the irreplaceable function of fine and criminal fine; The purpose of establishing the punitive damages of the law is to realize the complete compensation principle better on the basis of protecting the weeks legitimate rights and interests, it doesnt contradict with the establishment aim of the system of unjust benefit.