Explanation of terms:
Punitive damages refer to a kind of damages awarded by the court by the infringer to the infringed person in violation of civil laws.
An old American woman burned her leg while drinking hot coffee while driving, but she successfully won McDonald's and got millions of compensation. This story is familiar to everyone in China.
The old lady who won McDonald's is Stella, and there is an award named after her in the United States, which is awarded to the plaintiff's lawyer and jury in the most successful and absurd lawsuit every year. The most famous case that won the prize was Mr. Marv Grysinsky of Oklahoma.
The genius bought a brand-new 9-meter-long station wagon (motor home with bed, toilet and kitchen). On the highway home, he set the autopilot at 12 kilometers per hour, left the driver's seat and went to make coffee in the back, and finally had a big car accident. Fortunately, the man is still alive, and sued the car manufacturer and got $1.75 million in compensation, plus a new car, on the grounds that the car manual did not say: you can't leave the driver's seat to make coffee in the back.
after the case, the manufacturer really added this item to the instructions.
God is dead
In the famous "McDonald's coffee burn case", the actual loss suffered by the old lady Estella was only $2,. The jury awarded the defendant punitive damages of up to $2.7 million. According to American law, as long as the defendant commits fraudulent, intentional, malicious and serious illegal acts, punitive damages can be applied, and the amount of compensation can be much higher than the actual economic loss or mental damage of the victim.
In p>1999, General Motors of the United States had long known that there was something wrong with the fuel tank design, but it did not modify it in time for profit, resulting in severe burns to six people. The court ordered GM to pay $1 million in compensatory damages and $4.8 billion in punitive damages. This kind of punitive damages is aimed at large enterprises and protects vulnerable groups, aiming at severely punishing the subjective malice and immorality of infringers in order to make an example of them.
In the 17th and 18th centuries in the United States, punitive damages were mainly applied to cases such as slander, seduction, malicious attacks, etc., which caused the victim to suffer reputation loss and mental pain. After entering the 2th century, large companies and enterprises have flourished, and consumer damage cases caused by various defective goods have also occurred frequently. Large companies have deep pockets, and it is difficult to curb their risk of manufacturing and selling unqualified or even dangerous goods in pursuit of profit by compensating consumers. As a result, punitive damages are gradually applied to the field of product liability, and the amount of compensation is also increasing.
domestic consumers are not so lucky.
After the "Qi Er fake medicine incident" and "Sanlu milk powder incident", the helplessness of consumers in China is all highlighted in the pale legal provisions. The public's keen attention to the punitive damages system once again evokes people's memories of an incredible notebook dispute case ten years ago.
In August, 1997, Wang Hong bought a laptop computer from Hengsheng. Because of the quality problems of the computer, he had a dispute with the manufacturer. After many unsuccessful negotiations, Wang Hong consciously fell for it and posted an article on the Internet, "Please see how I bought a notebook computer from Hengsheng". As soon as this article came out, there were countless posts. Hengsheng believed that Wang Hong had violated the company's reputation right and initiated a lawsuit. On December 19th, 2, Beijing No.1 Intermediate People's Court made a final judgment, and the defendant paid 9, yuan to Hengsheng Company. On March 12, 21, the defendant was detained for "refusing to execute the judgment" because he was unable to pay the compensation. In the end, the lawyer who represented Wang Hong for free raised 9, yuan from many sympathizers and handed it over to the court. Only two days before the "Consumer Protection Day" did this unlucky consumer see the light of day again.
this judgment caused a great sensation when the internet was in the ascendant in China ten years ago. Emerging netizens regard the verdict as the biggest challenge to the freedom of online speech. On the day of the final judgment, Hengsheng's website was posted with striking white characters on a black background, "Win the lawsuit, lose the world". On the day of Wang Hong's detention, another netizen borrowed Nietzsche's famous saying-"God is dead".
One year after the verdict was made, Hengsheng disappeared from consumers' sight. After winning the lawsuit, the market gave it the most severe punishment.
Imported punitive damages
Ten years later, for many ordinary people in China, punitive damages are still a strange and powerless word, and people's more popular understanding of compensation is the problem of more compensation and less compensation.
The punitive damages system has not been clearly defined in Chinese laws until the Law on the Protection of Consumers' Rights and Interests was enacted in 1993. Article 49 of this law stipulates: "If an operator commits fraud in providing goods or services, it shall increase the compensation for the losses suffered by consumers according to their requirements, and the increased amount shall be twice the price of goods purchased or the cost of receiving services." This provision draws lessons from the punitive damages system of Anglo-American law, and it is also the only punitive clause in Chinese law so far.
People have different opinions about the determination of fraud.
At present, Article 68 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (for Trial Implementation) stipulates: "If one party intentionally informs the other party of false information, or intentionally conceals the true information to induce the other party to make a wrong expression of will, it can be considered as fraud."
On March 15th, 1996, Article 2 of the Measures for Punishment of Consumer Fraud issued by the State Administration for Industry and Commerce stipulated: "Consumer fraud as mentioned in this Law refers to the behavior that business operators cheat and mislead consumers by false or other improper means in providing goods or services, thus damaging their legitimate rights and interests." Therefore, fraud not only includes the operators actively fabricating false information or distorting the facts, but also intentionally concealing the true information, but also has the obligation to inform the consumers but not telling them.
However, as to whether to introduce punitive damages system, some legal experts think: "Punitive damages is a typical practice in Britain and the United States, which is inconsistent with the concept of civil law in civil law countries, so China does not need to follow suit."
Because of this, it is difficult to introduce punitive damages into China.
Fines and scratch one's boots
Looking back at China, the voice of expecting a legal trial for the illegal acts of enterprises is already higher than that of its moral trial.
However, when consumers think that the amount of compensation stipulated in the Consumer Law is not enough to make up for their own losses, but want to get more compensation, they have to choose a long and costly way to defend their rights through litigation. Because of this, many consumers give up their rights, and some enterprises continue to take risks.
however, recently, there was a news that was enough to cheer consumers up.
in the revised draft of the food safety law, the law of "ten times the price compensation" has been introduced. Compared with the double return in the elimination method, this is obviously a step further.
It has also been suggested that the introduction of punitive damages in the forthcoming Civil Code will be more conducive to the implementation of this system.
It is worth looking forward to that Chinese scholars have drafted two versions of the Draft Civil Code Tort Law, both of which introduce punitive damages. Version 1 stipulates that if a person intentionally infringes on another person's life, body, personal freedom, health or property with emotional significance, the court may order the offender to pay punitive damages not exceeding three times the compensation. Version 2 stipulates that if the product is defective due to the intentional or gross negligence of the producer or seller, causing personal or property damage to others, the victim may request the producer or seller to pay double the compensation.
However, compared with the punitive damages in the Anglo-American legal system, such provisions are still like scratching their boots.
why in recent years, cases of fake and shoddy food and toxic food have emerged one after another, one of the important reasons lies in the lack of deterrent power in the compensation mechanism. The cost of protecting the rights of consumers and victims is very high. In judicial practice, only the actual losses are awarded, regardless of the time and energy spent by the victims. Due to the lack of punitive damages, the illegal cost of offenders is very low, and the standard of compensatory damages is far from enough to resist their greed of making and selling unsafe food and problematic products for profit.
Countless facts tell us that only by increasing the illegal cost of enterprises can we protect the fair competition of law-abiding enterprises. Only the fear of litigation can make manufacturers pay attention to product quality, and they will not take big risks for small profits.