风险社会视域下的产品责任惩罚性赔偿研究

Research on punitive damages for product liability from the perspective of risk society

  • 摘要: 风险社会的到来对产品责任形成了全新挑战,民事责任中的惩罚性赔偿越来越多的成为其他法律应对社会风险的手段。《消保法》《产品质量法》《食品安全法》等法律均适用惩罚性赔偿实现各自的风险规制目的,在产品责任领域形成了“惩罚性赔偿+不真正连带责任”的责任形式。现行立法中,不同法律的惩罚性赔偿范围不同,赔偿的连带责任也有明显区别,引发了司法和理论的争议。惩罚的连带性与相关主体的内部追偿问题缺乏明确的制度与理论依据,只能交由法官自由裁量对经营主体之间的责任进行分配,难以实现多主体之间的公平。在风险社会中,惩罚性赔偿有明显的风险规制属性,所以应引入风险分配的理念完善惩罚性赔偿制度。首先,应当正视私法责任对公共利益的保护,建立公法与私法衔接的框架。其次,应当将风险注意义务引入惩罚性赔偿的认定,区分针对后果严重性的惩罚性赔偿和针对风险分配的惩罚性赔偿。最后,完善不真正连带责任的内部追偿规则,以此回应私法公法化进程中的民事责任分配问题。

     

    Abstract: The arrival of risk society has formed a new challenge to product liability, and punitive damages in civil liability has increasingly become other legal means to deal with social risks. The Consumer Protection Law, the Product Quality Law, the Food Safety Law and other laws all apply punitive damages to achieve their own risk regulation purposes, and form a liability form of "punitive damages + untrue joint and several liability" in the field of product liability. In the current legislation, the scope of punitive damages of different laws is different, and the joint and several liability of compensation is also obviously different, which has caused the judicial and theoretical disputes. The correlation of punishment lacks a clear system and theoretical basis for the internal recovery of the relevant subjects, which can only be discretionary by the judge to distribute the responsibilities between the operating subjects, and it is difficult to realize the fairness between multiple subjects. In the risk society, punitive damages has obvious risk regulation attribute, so the concept of risk distribution should be introduced to improve the punitive damages system. First of all, we should face up to the protection of public interests by private law responsibility, and establish a framework of connecting public law and private law. Secondly, the duty of risk care should be introduced into the identification of punitive damages, and the punitive damages for the severity of the consequences and the punitive damages for risk distribution should be distinguished. Finally, the internal recovery rules of non-true joint and several liability should be improved to respond to the distribution of civil liability in the process of public legalization of private law.

     

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