An Analysis Of The Recognition And Enforcement Of Foreign Judgments Of Punitive Damages

When defendant used reckless,vicious,cheating and such actions which cause damages to the victims,the court uses Punitive Damages which aim at punishing and warning defendants by paying extra compensations.Punitive Damages have a history of over two hundred years so far.It is common in tort area among Anglo-American legal systems.A few civil law countries use this as well.The characters of punitive damages are shown by its objects,conditions,certainty of compensation and statutory amount.Its main functions include punishing,prevention,compensation and stimulating lawsuit.Punitive damages are used in tort cases.Now some countries expand its scope of applications to product responsibilities,contractual obligations and etc.Apart from compensatory damages,the key components of punitive damages focus on subjective viciousness,fault level,level of moral punishments,level of defendant psychological testification in causality,actual damages and etc.Punitive damages have lots of conditions when it applies.Because of the differences of legal traditions and interests,most countries don’t have an agreement of punitive damages.It is learned from real cases from countries,there is no country recognize and enforcement foreign judgments of punitive damages unconditionally.Countries from two legal systems have three attitudes,fully refuse,recognize conditionally and uncertain.Attitude of punitive damages of countries come from nature of punitive damage,public policies,national treatment and procedures.In Germany and Japan,they have the history of refuse recognition and enforcement of foreign punitive damages.In recent years,legal academics have a strong will to reconsider this and Germany is even more active.In International harmonization,The Hague Conference on Private International Law and European Union have practices that members have already started to concern about this.The difference between members does not affect the tolerance of foreign judgment of punitive damages.So,in modern society,the trend has changed.Those countrieswhich refuse to recognize foreign judgments of punitive damages may change their attitude and this helps the development of foreign judgment.The feasibility of the recognition and enforcement of foreign judgment of punitive damages are shown in the following areas.First,it has to make sure whether it is civil or criminal,because not all punitive damages are criminal punishments.In some civil law countries,civil law has the function of punishment.Second,calculation of public policies,in modern International civil procedural law,the definition of public policies is reduced.In some circumstances,there is no conflict between foreign judgment of punitive damages and public policies.From individual case,the possibility of recognizing and enforcing is increased.Lastly,national treatment,from the need of justice,if foreigners violate the law,and according to domestic law they should be responsible for punitive damages,foreigners should take the same responsibilities as local residents.Rights and obligations,benefits and risks are against each other.Parties gain benefits by doing International activities,they should take risks from those activities.They cannot refuse to recognize and enforce foreign judgment of punitive damages by saying there is no such rule in their own country or this compensation may not in the best interest of them.From the perspective of protecting International business,there is no such rule in our country.But from modern International Private Law theory and the tolerance of foreign Public Law,we cannot refuse to recognize and enforce foreign judgment of punitive damages by saying we don’t have rule,limits of public law,conservations of public rules,national treatment and procedural problems.From the analysis above,it is important for our country to improve rules about recognize and enforce foreign judgment of punitive damages.As there is no such agreement in International law and domestic law,courts can view case one by one by considering status of parties,characters of the case,the amount of compensation to make decision that whether it should recognize and enforce or not.