惩罚性赔偿制度研究——以法经济学为视域

由于逃脱概率的存在,行为人对于自己的行为对他人造成的损失最终并非都会承担法律责任。如果仍然坚持实际赔偿原则,追求自身利益最大化的潜在致害行为人就会缺少预防损害发生的激励,从而导致无效率的结果。因此,需要借助惩罚性赔偿使致害行为人承担其行为的全部社会成本,从而激励行为人为无损社会福利的行为。惩罚性赔偿名为惩罚,实际上仍然是具有补偿性质的。鉴于此,应当拓展惩罚性赔偿的适用范围。此外,惩罚性赔偿数额的确定不宜过于机械,应赋予法官充分的自由裁量权。

The Research of Punitive Damage System --An Approach of Law and Economics

Because of the existence of the probability of escaping from legal liability,a person may not bear the legal liability which is caused because his or her behavior does harm to others.If we still stick to the principle of actual damages,a person who is in the pursuit of maximizing his or her own interests may lack the incentive to takes measures to avoid the loss,which leads to an inefficient result.Because of this,we need to let the infringers bear all the social cost which is caused by their behavior by means of punitive damage in order to encourage a person to make the acts that are not harmful to social welfare.Punitive damage is actually compensatory in spite that it is called punitive damage.Because of this,we should expand the scope of the application of punitive damage.Besides,the amount of punitive damage should not be too specific.The judges should be given sufficient discretionary power on deciding the amount of punitive damage.