On Nature Of Penalty

Accornding to traditional theory in civil law,penalty has been endowed with both compensationness and punitiveness, and some scholars even believecd only the compensationness exixted in it . But , as my own opinion , the nature of penalty relys on its punitiveness . The main reasons of the academic to reproach the punitiveness penalty is just because there is an undue criterion which was taken to define the nature of damages . By studying the origin and evolution of the rule of penalty, we can find they was used only as tools to prevent debtors from breaking contracts, and the later universal opinions which endowed penalty compensationess and punitiveness had distorted the punitiveness of damages . In fact, it is impossible to set penalty as compensatory damages for fulfilling the tradditional guarantee funtion of debt in civil law , and only punitive damages can fulfill this task . Because the punitiveness of penalty makes the damages have an essential distinguishion from compensatory damages , penalty should not include any compensatory funtion . The civil law doesn't ostracise civil compulsory measures with punitiveness, and punitive penalty also haven't broken the principle of fairness and justice in civil law. There have many mathods of bearing civil libility in breaching contracts, enduing penalty only one punitive character doesn't infringe the compensation's character of the civil liability's system in breaching contracts in general. It is necessary to establish a rule of punitive penalty in the social ecomical conditions of todays' China .