论惩罚性赔偿的可保性

On Insurability of Punitive Damages

惩罚性赔偿与"损害填平"的基本原理相抵触,本身就存在诸多争议。当惩罚性赔偿涉及责任保险,其可保性更是一个争议性的问题:若肯定其可保性,责任人将通过保险转移责任,惩罚性赔偿的特殊威慑功能将落空;若否定其可保性,又不符合包括受害人在内的各方当事人的实际利益。但通过分析责任保险对惩罚性赔偿的深层影响,惩罚性赔偿的可保性能够得到理论上的证成。此外,鉴于我国当前惩罚性赔偿制度的特点,它的可保性还可以作为重构我国惩罚性赔偿制度的支点。

Punitive damages was a disputed system for its colliding with the rationale of ＂damage filling＂ While the system was involved with liability insurance, its insurability is a more disputed issue. If the insurability was affirmed, the responsible persons should transfer their liability by insurance and the special deterrence function of punitive damages would be fail; If the insurability was negative, that does not meet the demands of each party, including the victim. However, through analyzing the influence of liability insurance, the insurability ofpunitive damages could be justified theoretically. Besides, in consideration of the characteristic of punitive damages in China, its insurability could be a supporting point for the reconstruction of punitive damages system of our Country.