论惩罚性赔偿的损害填补功能——以美国侵权法惩罚性赔偿制度为启示的研究

The Fill in Function of Punishing Payment to Damage: On the Enlightenment of American System of Punishing Payment in the Law of Rights Violation

惩罚性赔偿的损害填补功能关涉惩罚性赔偿制度的正当性证成,这是大多数美国学者不遗余力对其进行论证的主要原因。惩罚性赔偿高于受害人可见的实际损害部分,填补的是受害人私人可见损害背后的无形损害。该无形损害通常难以用金钱衡量,这就是惩罚性赔偿通常以可见损害的倍数计算赔偿数额的原因。无形损害可以是受害人私人难以用金钱衡量的精神损害,也可以是难以用金钱衡量的社会整体利益的损害。于侵权行为对社会整体利益造成巨大损害场合,惩罚性赔偿制度能够激励受害人积极主张权利,并借助于受害人个人利益损失的赔偿填补社会整体利益的损害,令被告承担应当承担的责任。

The fill in function of punishing payment is concerned with the legitimacy of the system of punishing payment system and it is the major reason that most American scholars in law to make a great effort to defend for it.The part of payments higher than the victims' actual damage is for the invisible damage to the victims which usually is difficult to judge by money that is the reason why the punishing payment often is several times of visible damage.The invisible damage could be the mental damage to the victim,and it also could be the damage to the general interests of society where the punishing payment system could inspire the victims' actively involved in rights pursuing and to make the accused to bare the responsibility.