美国侵权法中惩罚性损害赔偿制度雅洁
发布时间：2018-09-12 19:58
【摘要】： 惩罚性损害赔偿是英美法系国家特有的一种民事救济制度。该制度在美国历经两百多年的发展,被广泛地适用于侵权法领域,在惩罚严重的侵权行为和预防侵权行为的发生等方面发挥着重大的作用,因此具有重要的借鉴意义。基于此,笔者展开对美国侵权法惩罚性损害赔偿制度的研究。该研究涉及以下几个主要问题：在美国侵权法视角下,第一,何谓惩罚性损害赔偿；第二,惩罚性损害赔偿存在的理由；第三,适用惩罚性损害赔偿的侵权行为类型；第四,适用惩罚性损害赔偿时,如何确定适当的数额。 本文即围绕这些基本的问题展开研究,共分五章： 第一章为美国侵权法中惩罚性损害赔偿概述,主要研究了惩罚性损害赔偿制度的基本理论问题。本章立足于美国的司法判例和理论研究,主要介绍美国侵权法中惩罚性损害赔偿的定义,总结其特征；本章还将对惩罚性损害赔偿与返还性、加重性损害赔偿的关系进行辨析,进一步明晰美国侵权法中惩罚性损害赔偿制度的性质,获得进一步研究的理论基础。 第二章为惩罚性损害赔偿制度的功能研究。本章对惩罚性损害赔偿制度的功能进行了论述,指出此项制度的主要功能在于惩罚和威吓。得出侵权法惩罚性损害赔偿制度的理论基础。本章还尝试从经济学的角度引入“行为的成本与收益”理论和汉德公式对该制度进行分析,从经济学角度印证了惩罚性损害赔偿的社会功能,即一方面通过提高潜在侵害人的行为成本以达到事先预防侵权行为发生的目的；另一方面通过提高受害人的行为收益,激励受害人提起诉讼,达到加强法律威慑功能的目的。 第三章为美国侵权法中惩罚性损害赔偿制度的历史演进。本章结合判例介绍了美国侵权法中该制度的形成及发展,尤其是其历史沿革过程中经历的(19世纪)存废之争与(20世纪)改革浪潮,以期从历史的角度对美国侵权法惩罚性损害赔偿制度进行深入的理解和把握。经过上世纪80年代的改革浪潮,美国在立法及司法上均开始采取相应的措施对惩罚性损害赔偿的适用作出限制。 第四章为美国侵权法中惩罚性损害赔偿的相关规定。作为本文写作的重点,本章主要解构美国侵权法上惩罚性损害赔偿制度,以其构成要件与数额量定为两大要素来解读该制度,就相关细节展开详细论证；得出该制度适用于哪些侵权行为类型。 第五章为美国侵权法中惩罚性损害赔偿制度对我国的启示。本章立足于我国目前立法不够完善、侵权形式复杂多样、传统民事责任制度救济不足等现实国情,从法律和政策的层面分析我国侵权法适度引入惩罚性损害赔偿机制的必要性,提出未来我国侵权法中施加惩罚性损害赔偿的类型和标准等具体的立法建议。
[Abstract]:Punitive damages is a special civil remedy system in common law countries. The system has been widely applied to the field of tort law after more than two hundred years of development in the United States. It plays an important role in punishing serious infringement and preventing the occurrence of tort, so it has important reference significance. Based on this, the author studies the punitive damages system of American tort law. The research involves the following main issues: first, what is punitive damages from the perspective of American tort law; second, the reasons for punitive damages; third, the type of tort applicable to punitive damages; fourth, How to determine the appropriate amount when applying punitive damages. This paper focuses on these basic issues, divided into five chapters: the first chapter is a summary of punitive damages in the tort law of the United States, mainly studying the basic theoretical issues of punitive damages. This chapter mainly introduces the definition of punitive damages in tort law of the United States, summarizes its characteristics, and analyzes the relationship between punitive damages and restitution, aggravated damages. Further clarify the nature of punitive damages in American tort law and obtain the theoretical basis for further study. The second chapter is the function research of punitive damages system. This chapter discusses the function of punitive damages system and points out that the main function of this system lies in punishment and intimidation. The theoretical basis of punitive damages system in tort law is obtained. This chapter also tries to introduce the theory of "cost and benefit of behavior" and Hande formula from the angle of economics to analyze the system, which proves the social function of punitive damages from the angle of economics. On the one hand, by increasing the cost of potential aggressors to achieve the purpose of preventing the occurrence of tort in advance; on the other hand, by increasing the benefit of the victim, encouraging the victim to file a lawsuit to achieve the purpose of strengthening the function of legal deterrence. The third chapter is the historical evolution of punitive damages system in American tort law. This chapter introduces the formation and development of the system in the tort law of the United States, especially the (19th century) debate on the existence and abolition of the system and the wave of reform in the 20th century. From the historical point of view, the punitive damages system of American tort law is deeply understood and grasped. After the reform in the 1980s, the United States began to take appropriate legislative and judicial measures to limit the application of punitive damages. The fourth chapter is the relevant provisions of punitive damages in American tort law. As the focal point of this paper, this chapter mainly deconstructs the punitive damages system in the tort law of the United States, interprets the system with its constituent elements and amount as two main elements, and demonstrates the relevant details in detail. It is concluded that the system is applicable to the types of tort. The fifth chapter is the enlightenment of punitive damages system in American tort law. This chapter is based on the current situation of our country, such as imperfect legislation, complicated forms of tort, inadequate relief of traditional civil liability system, and analyzes the necessity of appropriately introducing punitive damages mechanism into tort law from the level of law and policy. This paper puts forward some specific legislative suggestions such as the types and standards of punitive damages to be imposed in tort law of our country in the future.
【学位授予单位】：北京化工大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D971.2;DD913
本文编号：2240073
[Abstract]:Punitive damages is a special civil remedy system in common law countries. The system has been widely applied to the field of tort law after more than two hundred years of development in the United States. It plays an important role in punishing serious infringement and preventing the occurrence of tort, so it has important reference significance. Based on this, the author studies the punitive damages system of American tort law. The research involves the following main issues: first, what is punitive damages from the perspective of American tort law; second, the reasons for punitive damages; third, the type of tort applicable to punitive damages; fourth, How to determine the appropriate amount when applying punitive damages. This paper focuses on these basic issues, divided into five chapters: the first chapter is a summary of punitive damages in the tort law of the United States, mainly studying the basic theoretical issues of punitive damages. This chapter mainly introduces the definition of punitive damages in tort law of the United States, summarizes its characteristics, and analyzes the relationship between punitive damages and restitution, aggravated damages. Further clarify the nature of punitive damages in American tort law and obtain the theoretical basis for further study. The second chapter is the function research of punitive damages system. This chapter discusses the function of punitive damages system and points out that the main function of this system lies in punishment and intimidation. The theoretical basis of punitive damages system in tort law is obtained. This chapter also tries to introduce the theory of "cost and benefit of behavior" and Hande formula from the angle of economics to analyze the system, which proves the social function of punitive damages from the angle of economics. On the one hand, by increasing the cost of potential aggressors to achieve the purpose of preventing the occurrence of tort in advance; on the other hand, by increasing the benefit of the victim, encouraging the victim to file a lawsuit to achieve the purpose of strengthening the function of legal deterrence. The third chapter is the historical evolution of punitive damages system in American tort law. This chapter introduces the formation and development of the system in the tort law of the United States, especially the (19th century) debate on the existence and abolition of the system and the wave of reform in the 20th century. From the historical point of view, the punitive damages system of American tort law is deeply understood and grasped. After the reform in the 1980s, the United States began to take appropriate legislative and judicial measures to limit the application of punitive damages. The fourth chapter is the relevant provisions of punitive damages in American tort law. As the focal point of this paper, this chapter mainly deconstructs the punitive damages system in the tort law of the United States, interprets the system with its constituent elements and amount as two main elements, and demonstrates the relevant details in detail. It is concluded that the system is applicable to the types of tort. The fifth chapter is the enlightenment of punitive damages system in American tort law. This chapter is based on the current situation of our country, such as imperfect legislation, complicated forms of tort, inadequate relief of traditional civil liability system, and analyzes the necessity of appropriately introducing punitive damages mechanism into tort law from the level of law and policy. This paper puts forward some specific legislative suggestions such as the types and standards of punitive damages to be imposed in tort law of our country in the future.
【学位授予单位】：北京化工大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D971.2;DD913
【引证文献】
相关硕士学位论文 前1条
1 陈英华;浅议我国民事赔偿制度中的惩罚性赔偿[D];复旦大学;2011年
，本文编号：2240073
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