The Theoretical Foundation And Application Of Punitive Damage

The Tort Liability Law, which is recently passed through and implemented, provides in punitive damages once again in article 47.It provides a new opportunity for examining our country's existing theory of punitive damages and further development of theory. Domestic scholars concern about it quite a lot. From the articles they write we can see that most of them think that the system of punitive damages in our country develops from article 49 of the Consumer Protection Law, to the later the explanation about the application of law on the trial of commodity premises sales and purchase contract dispute, and then the Food Security Law, which is a developing process from contract field to tort field. However, through in-depth analysis, we can see that under the provisions of the foregoing there are ingredients of the infringement. Thus my paper will be written around the article 47 of Tort Liability Law, analyzing the punitive damages of our country from the perspective of tort, making a search on common theoretical foundation of punitive damages from the angle of systematization, and then comb the terms of punitive damages provided till now in our country. This paper will also talk over the cross and dependencies between public law and private law reflected by punitive damages, and also the scope and limits of this cross, in order to provide a little insight of the building for the systematization of punitive damages. Based on the above this paper will go on to considering about the factors for the application of article 47 of Tort Liability Law, to enhance its operability in practice.This article is divided into three parts. The first part is the theoretical analysis on article Tort Liability Law, and then sort out the provisions provided in our current legislation and judicial interpretation, meantime analyze ingredients of the infringement under the provisions.The second part focuses on the division and the cross of public law and private law, talking about the scope and limits of such across, in order to provide a more solid theoretical foundation for the rationality of existence of punitive damages. The third part mainly analyzes the various issues in the process of application about article 47 of Tort Liability Law and the factors which the judges taken into account when they exercise the judicial discretion, in order to enhances the operability of this provision. The writer points out at the shortage of the theory and practice, and makes a suggestion for promoting the further improvement of the punitive damages system.