论惩罚性赔偿的正当性

On punitive damage's legitimacy

惩罚性赔偿在我国一些法律制度中已有所体现。惩罚性赔偿的正当性,是惩罚性赔偿制度架构的基石。从古代法及宗教教义中发掘惩罚的正当性思想,大陆法系理应蕴含惩罚性赔偿制度。通过经济学的方法,分析补偿性赔偿的缺陷,惩罚性赔偿的产生原因,阐释惩罚性赔偿具有的惩罚、威慑、激励等功能。此外,惩罚性赔偿蕴含着正义,秩序等法律理念,包含着促使民众为权利斗争的精神。惩罚性赔偿外在的工具价值与内在的法律价值,均体现了惩罚性赔偿的正当性。

It is a worldwide common rule that any act in law against a mandatory provision of any law or administrative regulation is void.Identifying the legal effect of a contract against law involves tense relationship between autonomy in private law and mandatory rules in public law,as well as that between the interests of contractual parties and the public interests.Article 52（5） of Contract Law of the People＇s Republic of China has established a connection between autonomy in private law and mandatory rules in public law,and the levels of law applied to identify whether a contract is against a mandatory provision of any law or administrative regulation has further been restricted,meanwhile,the classification of mandatory provisions on validity and that on restriction has also been made.However,the mentioned endeavors seem to be lacking operability in legal practice.The court shall,based on the specific conditions of a particular case,determine the effect of a contract violating mandatory rules,after measuring the public interests with application of Proportionality Principle.