The Re-evaluation of the Punitive Damages in Taiwan: Focusing on Article 51 of the Consumer Protection Act
Date Issued
2014
Date
2014
Author(s)
Lin, Jia-Ru
Abstract
Punitive damages are the extra monetary burden intended to punish and deter the malicious wrongdoers. The doctrine did not exist in Taiwan law at first. Starting from late 1980, it has been adopted in the civil law area in Taiwan for over 20 years. Today, it is curious that whether the development and application of the system in Taiwan are distinct from the one in U.S.A. Therefore, with the methods of comparative law and empirical study, this Thesis tries to observe, analyze, compare, and re-evaluate the punitive damages system in U.S.A. and in Taiwan.
Chapter two, “The Punitive Damages in U.S.A.”, focuses mainly on the parts that can be parallels between U.S.A and Taiwan. The doctrine of punitive damages is originated from English law. Though triggering many controversies, the system has become a steady one in today’s U.S.A. through the 200-years up development. The functions of it are punishment, deterrence, and encouraging private prosecutors. There are a few states admit the function of compensation.
First, the majority hold that the doctrine is only applicable in torts cases. And it is applicable in contracts only if the breach of contract constitutes torts at the same time. As to the subject of legal responsibility, there is an argument relating to the rule of vicarious liability and complicity rule. There are a few courts hold that only the directly injured victim can be awarded punitive damages without any constructive reasoning. Besides, when the victim is dead, more than half of the states or the court decisions grant the decedent punitive damages.
Second, the injured party bearing actual damages, and the infringer at least being gross-negligent, then constitute the punitive damages responsibility.
Third, every state has its own jury instructions. But to sum up, there are 15 factors. Among them, the reprehensibility of the defendant, the profit of the defendant, and the degree of other punishment the defendant should bear are related to the functions of punishment and deterrence. The wealth of the defendant is the most controversial factor. Due to the Supreme Court, the punitive damages must bear a reasonable relationship to compensatory damages. It is problematic that whether the attorneys’ fees should be counted into the plaintiff’s compensatory damages. Currently, it has not been decided. Moreover, most opinions see that the victim’s comparative negligence would not affect the constitution and the number of the punitive damages responsibility. It is still controversial that whether the responsibility of punitive damages should be joint or several.
Fourth, in late 1980s, several shocking verdicts triggered the waves of reforming the punitive damages system. A lot of reforming plans are proposed to avoid the occurrence of the excessive verdicts. Here the Thesis talks about some important ones. In substantial law, cap rule, ratio guidepost, and the split-recovery are the ones to limit the number of the punitive damages. In procedural law, the mostly discussed plans are judge-determined punitive damages, bifurcation, and the higher standard of proof. To some extents, these reforms provide solutions to the adverse effect of the excessive awards, but generate some theoretical problems.
Chapter three is about “The Punitive Damages in Taiwan”. This Thesis firstly confirms that the functions of our punitive damages system are punishment and deterrence. Then, this Thesis induces four characteristics of the doctrine from the description of it in American law. And with these four, this Thesis filters all the possible regulations and ascertains that there are 8 Articles concerning punitive damages.
Next, this Thesis reviews all punitive damages decisions made by the Supreme Court and the Taiwan High Court. And the empirical data shows that besides Art. 51 of the Consumer Protection Law, other punitive damages regulations are rarely in application. Besides, the probability of receiving punitive damages awards is low, and the number of the punitive damages is usually not shocking.
Since Art. 51 is the most applicable regulation, this Thesis focuses on the explanation controversies of Art. 51 of the Consumer Protection Law. In view of the system functions, this Thesis tries to provide solutions to every problem we have with the aid of legal practice, academic research, and foreign legal study. This Thesis holds that as long as the defendant intentionally or negligently violates any regulation intending to protect consumers, and causes actual harm to “the consumer” or “the third party”, the victim could file a suit and claim for punitive damages in accordance with the Art. 51 of the Consumer Protection Law.
When there are multiple defendants, this Thesis holds that we should examine the subjective reprehensibility of the defendants separately to see whether they are liable for punitive damages. As to the calculation of the amount of actual damages, unless the court admits that the Consolation Payment is a punishment, the non-pecuniary damages should be included. Moreover, the comparative negligence of the victim has nothing to do with the constitution and the scope of the punitive damages responsibility. Art. 217 of the Civil Code is not applicable in punitive damages. The Thesis finally concludes that the subjective reprehensibility of the defendant, the profit of the defendant, the finance of the defendant, the post-incident behavior and attitude, the loss and damage of the plaintiff, and the extent of other legal punishment are the criteria for deciding the amount of the punitive damages.
Lastly, in the legislative part, this Thesis turns to an integrated perspective, re-evaluates the justifiability and the necessity of the system in Taiwan law. The result of the research reveals that the system should not be abolished for the violation of “the separation of civil and criminal law”. However, it should be noted that the operation of the punitive damages has to be constitutional and conform to the “Rule of proportionality” and “Double Jeopardy”. The legislators should be more cautious when considering whether to enact a punitive damages regulation into the Civil Code. Besides, the current cap rule should be abolished to enhance the functions of the system. Nevertheless, if the legislators insist to adopt the cap rule, this Thesis suggests that “the profit of the defendant” could be an additional basis of calculation. To sum up, the Thesis integrates all the above research results, and tries to provide the legislators with three editions of legislative suggestions.
Subjects
懲罰性賠償金
填補性損害賠償
懲罰
嚇阻
消費者保護
SDGs
Type
thesis
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