侵權行為責任中精神損害賠償與懲罰性賠償金——以消費者保護法第五十一條為例

The Immaterial Damages and Punitive Damages in Torts: Using the Example of the Article 51 of Consumer Protection Act

The main purpose of torts in European-Continental Legal System is to balance the freedom of action and the protection of interests. In modern society of omnipresent risk, there has been no consensus on whether the function of the law of tort should be expanded to impose criminal sanctions or administrative prevention. While the Article 51 of Consumer Protection Act has provided the institution of punitive damages, the means and methods of integrating this foreign matter into the framework of the law of tort are still unclear. In this article, a number of perspectives are provided to interpret the critical interaction. It is argued that in terms of the function of torts, the introduction of punitive damages in our legal system tends to transform the individual justice into social justice. While such new development indeed contributes to the realization of certain goals of policy, it has caused distortions of the conception of torts. In addition, it is also revealed that the private autonomy and the intervention by the state are not sharply divided. Consequently, it has become increasingly difficult to identify the figure of civil law in a broad sense.