論慰撫金與懲罰性賠償之關係：從歷史背景及功能演變談近年發展

The Relationship between Non-Pecuniary Damages and Punitive Damages: On the Recent Development from the Historical Background and Function Evolution

法律的歷史上有很長一段時間係民刑事責任不分，慰撫金與懲罰性賠償淵源的社會背景接近，但不意味二者即同一概念；況早期侵權行為未能細緻地類型化，自多以嚴重冒犯他人權益行為為責任客體。然當代民事賠償觀點，已從加害人行為移轉至被害人損害的填補，故除有形身體受害外，隱私、情感利益等受害，不限加害人主觀故意或過失，對被害人精神痛苦，得運用適當方法衡量並填補。人格權及非財產損害賠償之「慰撫金」，已經歷一段奇幻歷程，這二百年來很大的變化，是現代法律制度對保護源自社會的個人利益需求的一種回應，反映一個國家所達成的法律和經濟發展。我國民法繼受歐陸，過去非財產損害賠償較為保守，現今已有開展；民法嚴守民刑事體系分離及損害賠償一元制，作為懲罰性賠償金計算之「損害額」，自包括財產及非財產上損害。消費者保護法第51條係新領域為達成特別目的之立法選擇，其中牽涉「慰撫金」性質演變與社會價值的當代議題，依此脈絡，本文著重思考「慰撫金」與「懲罰性賠償」之關係，觀察主要國家制度發展之趨勢。適今（2021）年最高法院大法庭作成108年度台上大字第2680號裁定，希望藉由更一步的探討，能有助於對此法律制度與概念因應時代的合理移動，具清楚之理解。

In the history of law, there has been a long period of time that civil liability and criminal liability were not well distinguished. Although the social background of the origin of non-pecuniary damages and punitive damages is close, it does not mean that the two are the same concept. Besides, early torts were not categorized in detail, so assault and battery are often regarded as normative behavior types. However, the contemporary viewpoint has shifted from the act of the tort-feasor to the compensation of the victim’s damage. Whether the actor is intentional or negligent, when the victim's physical, privacy or emotional interests were infringed, and thus the victim's intangible mental suffering caused by this, the law should use appropriate methods to measure and adequately recover it. Personality rights and non-pecuniary damages have undergone a fantasy course during the last two hundred years. The great change is a response of the modern legal system to the need to protect personal interests derived from society, reflecting the legal and economic development of a country. Taiwan's civil law is inherited from the European civil law system, and although we have taken a conservative attitude towards non-pecuniary damage compensation in the past, yet, this system has been gradually developed now. Taiwan's law distinguishes between civil and criminal systems, and the law of damages is purely monistic. Therefore, the “damage amount” used to calculate punitive damages should include both pecuniary damage and non-pecuniary damage. Article 51 of the Consumer Protection Law is a choice for the new field to achieve special legislative purposes, which involves the evolution of non-pecuniary damage as well as contemporary issues of social value. Following these lines of thought, this article focuses on the relationship between “non-pecuniary damage” and “punitive damages” by observing the development trends of several major countries. This year (2021) the Supreme Court announced the Ruling of the Grand Chamber Decision No. 2680 (2019), and I hope that by exploring this issue more in-depth, to have a clearer understanding of the rational movement of these legal concepts and systems in changing times.