Research On The Calculation Standard Of Punitive Damages In Public Interest Litigation Of Food And Drug Safety

Food and drug safety is a major political issue,livelihood issue,and also a major public security issue.In order to solve the increasingly prominent problem of food and drug safety,China has established the system of individual consumers claiming punitive compensation from illegal producers and operators in the Food Safety Law of the People’s Republic of China,the Drug Administration Law of the People’s Republic of China and the Law of the People’s Republic of China on the Protection of Consumer Rights and Interests,and later has also stipulated this responsibility bearing method in the Civil Code,Food and drug safety problems have been alleviated to some extent.However,there are some problems such as weak power,limited knowledge and less punishment in the punitive compensation filed by consumers.The situation of food and drug safety is still grim.The Party Central Committee and the State Council proposed to explore the establishment of a punitive compensation system for public interest litigation in this field and increase the punishment for illegal acts of food and drug.Because the system is in the exploration period,the subject of public interest litigation and the court judge often determine the amount of punitive damages in public interest litigation by directly referring to the calculation method of punitive damages filed by consumers,which has caused a series of problems.Therefore,it is imperative to establish the calculation standard of punitive damages in food and drug safety public interest litigation.First of all,the paper combs the legislative evolution of the punitive compensation system for food and drug safety,and analyzes the legal nature of punitive compensation.Secondly,it studies the actual situation of the court’s calculation of punitive damages in public interest litigation for food and drug safety.Through data statistics and analysis of typical cases,it is found that the number of cases in which punitive damages have been supported by court decisions has doubled in recent years.At present,the subject of public interest litigation and the court’s calculation of punitive damages in public interest litigation are mainly based on the calculation method of private interest punitive damages,that is,the total consumption,Take ten times as the penalty multiple,which may lead to excessive compensation;There are also differences on whether punitive damages,criminal fines and administrative fines can be offset against each other.Then it analyzes the causes of the problem: on the one hand,it confuses the difference between the punitive damages in the public interest litigation of food and drug safety and the punitive damages in the private interest litigation;On the other hand,in order to avoid the high amount of compensation,the nature of the punitive damages is wrongly positioned,so that the system of no longer punishment for one thing can be applied to offset the punitive damages with fines and fines.Finally,the author puts forward some suggestions to solve the problem,that is,the punitive damages for food and drug safety public welfare litigation should be based on the total sales price as the penalty base,and the calculation method of elastic penalty multiple considering multiple factors should be established;The connection with punitive damages for private interests should be considered when establishing the penalty base and multiple.Criminal fines and administrative fines should be the discretionary mitigating factors to establish the multiple of punishment and should not be deducted from the punitive damages.If the calculated punitive damages,fines and penalties can not be met at the same time,the civil punitive damages should be borne in advance,followed by fines and fines.