懲罰性賠償與刑事責任的競合、衝突與解決

經營者生產、銷售偽劣產品的場合經常會發生懲罰性賠償責任和刑事責任的競合。從懲罰性賠償的屬性來看，其與刑罰同屬 懲罰措施，具有准刑罰性，因而同時適用懲罰性賠償和刑事責任便會有“雙重處罰”的危險。雖然有觀點認為懲罰性賠償對於刑法規制有彌補刑事處罰漏洞的特殊功能，但由於受到罪刑法定原則的制約，刑法漏洞無法通過其他部門法彌補，且在產品刑事責任領域並無彌補漏洞的必要。既然可以通過刑法手段追究產品經營者的責任，原則上就不需要再另設懲罰性賠償制度。但考慮到現行立法已經引入了懲罰性賠償制度，必須通過合理方案解決懲罰性賠償與刑事責任的適用衝突問題。具體建議包括：禁止民事公益訴訟提起懲罰性賠償、通過折抵避免重複處罰以及懲罰性賠償的數額確定應符合比例原則等。

When business operators produce and sell counterfeit and inferior products, the concurrence of punitive damages liability and criminal liability often occurs. Judging from the nature of punitive damages, it belongs to the same punitive measures as punishment, and is therefore a kind of quasi-penalty. Therefore, if punitive damages and criminal liability are applied at the same time, there is a danger of “double jeopardy”. Although some scholars believe that punitive damages have a special function in the regulation of criminal law—to make up for the loopholes in criminal punishment which can not be made up by other departmental laws due to the restriction of the principle of nullum crimen sine lege. And as a matter of fact, however, there are no loopholes in the field of product criminal responsibility. Since the product providers can be held accountable by means of criminal law, there is no need to set up another punitive damages in principle. However, considering that the current legislation has introduced a punitive damages system, it is necessary to resolve the conflict between the application of punitive damages and criminal liability in a reasonable way. Specific suggestions include：prohibiting civil public interest litigation from filing punitive damages, avoiding repeated penalties through deductions, and determining the amount of punitive damages in accordance with the principle of proportionality, etc.