Punitive Damages System In Protection Of The Consumer Rights And Interests-The Concrete Structure And Legislative Prospect

Punitive damages originated in the countries of anglo American law system,which played an important role in maintaining the economic order.In 1994,China introduced the system of punitive damages into the field of protection the rights of consumers,the symbol is the promulgation and implementation of the law for prote ction of consumer rights.Clause 49 of formulated "the double indemnity "that created a precedent of punitive damages in our country.But with the deepening of reform and open in China and the development of market economy,Punitive damages system is more powerless in protecting the consumers’ rights and interests,all kinds of torts often appear which damage consumer’s rights and interests.In 2013,in order to comply with the requirement of the development,strengthen the fight against all kinds of wiolations,increase the intensity of consumer rights,China decided to amended the law on protection of consumer rights and revised the punitive compensation system.However,whether it is the old law or the new law,there are no explicit provisions for the applicable elements and the standard of compensation in this system which not only caused difficulties in the application of the court,but also failed to fully realize the function of the system of punitive damages.Through the current opportunity of formulating the civil code,the purpose of this paper is to further improve the structure of specific elements,discuss the necessity and feasibility of incorporating into the civil code by analysising the existing problems in the practice and the academic circle on the specific application of punitive damages.The major content of this paper is divided into five parts.The first part puts forward the main problem.Through analysising two typical cases,we will find the problem of the application of punitive damages in consumer protection from different aspects.It points out that there are no small divergence in the identification of several elements of the punitive damages system in the judicial practice,such as the consumer subject,fraudulent conduct and other fators.By understanding all these conditions,we can analyze the possible hazards of this system in our society.The second part takes more emphasis on the judicial practice,there is a series of problems in our daily legal practice,the content of the specific discussion includes the determination of the subject of consumer,the determination of fraudulent conduct,the determination of compensation and the application effect of punitive damages in the field of consumer protection.The analysis methods of the first three parts are mainly through the guidance of the Supreme Court case and the refree statistics of the lower court.Through this method,we can see the divergence in the judicial practice and the opinions of the Supreme Court on these issues,what’s more,we can also dig out the reason behind it and figure out the solution.The analysis method of the application effect of the punitive damages in the field of consumer protection is based on the specific data from nearly five years.One is from the change of the number of the cases that have been received by Consumers’ Association,the other is from the change of the number of cases that have been heard by the court.By comparing the variation trend of the specific data,we can analysis the actual application conditions of the punitive damages system in the field of consumer protection.The third part explores the varied opinions of the academic circle on this issue.This part is mainly about the identification of the subject of consumer,fraudulent conduct,the mode of calculating compensation and the legislative model of the law for the protection of consumers’ rights.By showing the different views in these problems from different scholars,and then analysis the advantages and disadvantages between these different views,we can figure out the possible directions for punitive damages in academic research,and ultimately have an positive impact on judicial practice.The forth part is the innovation of the paper.It focuses on the core issue of this paper,which is the expansion and reconstruction of concrete elements.Because of specific elements of the punitive damages in the law of protection of consumers’rights are relatively vague,our courts have many difficulties in the applications.In order to solve these problems with the premise of not changing the existing law,the best way is through the expansion of application.This part mainly covers three aspects,including the expansion of application in the subject of consumer,the expansion of application in the fraudulent conduct,as well as the expansion of the application field of the punitive damages in the law for the protection of consumers’rights.In the expansion of the subject of consumer,we will discuss it from two different aspects,which are unit and the operator;In the expansion of the application in the fraudulent conduct,the specific practices include the tension of the "intention"element and the tention of identification of the "intention" element.Finally,in the expansion of the application field of the punitive damages,in this paper,we should not only include the field of infringement,but also should include the field of medical service and commercial housing sale.In order to solve the existing problems in the legal system,this paper adopts the method of eapanding the elements and the identification of the elements of the punitive damages in the law for the protection of consumers’ rights,in this way,we can not only maintain the dignity of the existing legal,but also can better play the role of this system,better protect the consumers’rights and interests.The fifth part is the recommendation of the prospects of future legislation.Under the broader backround of enacting our Civil Code,the main problems we will discuss are why and how to bring the law of the protection of consumers’ rights into the civil code and how to bring the system of punitive damages into the civil code.By analyzing the process of civil law reformation both in Japan and Germany,we can put more emphasis on the necessity and feasibility of binging the system of punitive damages into our civil law from the theory and practice angle.