从“苏丹红”案看惩罚性赔偿与责任竞合

Punitive Compensation and Liability Concurrence from "Sudan Red" Case

通过分析全国首例“苏丹红”案所涉惩罚性赔偿的适用及责任竞合问题,认为惩罚性赔偿责任的构成要件为经营者提供商品、服务时有欺诈行为及消费者受有损失。法律应就经营者的欺诈行为作出举证责任倒置的规定。消费者要求经营者承担惩罚性赔偿责任的基础关系为合同关系。“苏丹红”案中,原告诉请涉及侵权责任与违约责任竞合问题。责任竞合时,权利人最迟应在一审开庭前作出选择,如果不作选择或者放弃选择权,应由法院依据有利于维护权利人权益的原则,作出适用违约责任或侵权责任形式的判决。

By analyzing the first case about ＂Sudan Red＂ that happened in China, which has called for the problem about punitive compensation and liability concurrence. We make sure that punitive compensation should involve businessmen＇s providing unqualified or fraud behavior and consumer＇s damnify. Law ought to give clear rules for businessmen＇s evidence argument inversion. However, The basic evidence should be based on a contract, in terms of which consumers have rights to ask for businessmen＇s punitive compensation. In ＂Sudan Red＂ case, plaintiff plea for and refers to the issue about concurrence of tort liability and breach of faith liability which at least should be provided before First adjudgement, when concurrence of liability happens,if the involved parties do not choose or give up, it should turn to court to choose the one that is best for protecting interests of obligee, so as to give the sentence of tort liabillity or breach of faith liability.