A Comparative Study On Punitive Damages On The Protection Of Consumer Rights And Interests

This paper explores the availability of punitive damages in protecting consumers’rights and interests, comparing with the legal provisions and judicial practice ofpunitive damages in other countries, with the aim of modifying our consumerprotection law in accordance with our national conditions so as to maintainMarket-oriented economic order and public interests.ChapterⅠprobes into consumer protection and punitive damages of our countryat present and, briefly introduces the legal provisions, judicial practice and academicviews at home and aboard. The theme of ChapterⅡare theories of punitive damages,including its concepts, arguments concerning its nature, legitimation, function andconstitutional elements of the liability. This thesis also deliberates the approaches toclaim punitive damages in lawsuits, which includes separate action and group action,as well as the assessment and allocation of punitive damages awards. Chapter Ⅲdiscusses punitive damages under the legal provisions and judicial practice of UnitedStates, Germany and Britain, from four aspects: its theoretical basis, constitutionalelements, claiming approaches in lawsuits, assessment and allocation of punitivedamages awards. Chapter Ⅳ analyzes the open ended cases as follows: arguments onthe theoretical basis of punitive damages, constitutional elements of punitive damagesliability under present law, as well as the assessment and allocation of punitivedamages awards. It also indicates the shortcomings of claiming punitive damages inseparate action, organization litigation and group litigation. Chapter Ⅴ makesrecommendations from four aspects as the theoretical basis, including theconstitutional elements, approaches to claim in lawsuits, assessment and allocation ofpunitive awards for the purpose of remedying punitive damages of our country bytaking into consideration of the reality of our country, as well as the punitive damagesprocedure of group action. The conclusion part provides some recommendations toConsumers’Rights and Interests Protecting Law (Draft).This paper argues that punitive damages are the legal liability from theperspective of economic law for the purpose of remedy public interests. It is formedby two aspects, namely the subjective intention and wrongful behavior conducted by business operators. The wrongdoings could be divided into two kinds, including thescattered injures and mass tort. Group action should be the basic approach of lawsuitto claim punitive damages. Based on different wrongdoings, organization litigationshould be brought to claim punitive damages for scattered injures whereas modelaction in group litigation procedures for mass tort. Assessment and allocation ofpunitive damages awards should also vary according to different wrongful conducts.“Fine for the sake of collective welfare” ought to be adopted to deal with the scatteredinjures. Not only the fruits of business operators’ wrongdoings should be strippingaway, an appropriate additional sum should also be determined according to thediscretion, and the whole punitive damages awards ought to be handed in to thecountry.“Incentive payment” should be adopted to address mass tort, and2-to-1should be the ratios between punitive and compensatory damages in principle.Besides, the judge has the discretion to determine an appropriate ratio in specificcases, and punitive damages awards should be paid to consumers.