Whereas common law countries think highly of punitive damages and Chinese law accepts them, continental European countries reject them. This paper enumerates and evaluates the various arguments that have periodically been put forward in favour and against punitive damages. It examines why such damages are awarded in some quarters of the globe and not in others and proffers alternative remedies which achieve some of the goals of punitive damages in a manner commensurate with the aims of tort law. To the extent that gaps remain, the author calls for development in other areas of law, particularly criminal and administrative penal law. Punitive damages do not belong in tort law. The author concedes, however, that unjust enrichment and tort law itself could also benefit from development to meet the demands of reasonable compensation and in this way, prevention.
In a country such as China, with abundant consumer products and the inevitability of product defects, claims for punitive damages are sure to arise under Article 47 of the new Chinese Tort Law. Article 47 provides that “(w)hereany producer or seller knowingly produces or sells defective products, causing death or serious damage to the health of others, the injured party may request appropriate punitive damages.” As Chinese jurists and scholars interpret Article 47, they may wish to consider whether lessons can be drawn from the American experience. During the past two decades, few areas of American law have changed more radically than the law on punitive damages. While there were once few restraints on the ability of a judge or jury to impose punitive damages in a case involving egregious conduct, today there are a host of limitations embodied in American state and federal law. In many American states, statutes or judicial decisions restrict the ability of a court to award punitive damages by narrowly defining the types of conduct that will justify a punitive award, raising the standard of proof, capping the amount of punitive damages, requiring a portion of a punitive award to be forfeited to the state, or limiting vicarious liability for punitive damages. In addition, under federal constitutional law, the principle of due process limits the imposition of punitive damages by scrutinizing the ratio between compensatory and punitive damages and prohibiting an award to be based on harm to persons other than the plaintiff. An examination of these developments from a comparative law perspective may prove useful to the implementation of Article 47.
From the early 1990s onwards, the institution of punitive damages in Chinese civil law has been introduced in translation, learned in discussion, and adopted over a 20 year period of development. Punitive damages were first provided for in Article 49 of the Consumer Protection Law (CPL) of 1993, and this institution has expanded into the field of tort liability with later laws (the Food Safety Law and the Tort Law), and judicial interpretation as supplement. Further, the latest amendment of the CPL has drawn attention to the following two points: (1) the calculation method has been amended leading to an increase in punitive damage amounts in most cases; (2) Article 55 specifies the corresponding provision in the CTL. It has coordinated and synchronized two institutions: punitive damages and mental injury compensation, in the way of entitling the consumer the “right to claim punitive compensation of not more than twice the amount of losses incurred” with the “the amount of losses” including the mental injury compensation. In the second part, the very basis upon which the developing legislations above rests is rooted in intense academic discussions regarding various aspects of punitive damages. Some quintessential topics thereof selected in this article concern: the legitimacy of punitive damages, commentaries on buying-fake-while-knowing-it, the calculation method for punitive damages, and the relationship between punitive damages and mental injury compensation. In the summary, the authors reveal certain negative trends in the application of punitive damages.
This article examines the evolution of politics and laws related to sustainable development in China. Sustainable development has been positioned as an economic development strategy many years ago. However, in earlier times, it bore a heavy tint of national strategy, followed by a kind of soft sustainable development with a technological orientation. The recent decade has seen China on track for strong sustainable development. At the present, China is around the turning point of the “Environmental Kuznets Curve,” where both domestic and international multiple pressures are forcing the whole country to make new choices for its dimension of sustainable development strategy. Although sustainable development has been recognized by the legal field of environmental resources, it is still not yet fully integrated into other areas of law. The period from weak to strong sustainable transition is accompanied by another transition, more significant in China, from industrial civilization to ecological civilization. Compared to weak sustainable development, the complex and contradictory character of strength has brought more challenges. Sustainable development of dualism and compromise, which corresponds with the actual needs in China, is an important theoretical basis and practical standards for implementing the scientific view of development. Finally, it concludes by noting that ecological civilization is attempting to solve the problems from a more broad perspective, and to pay more attention to public participation, at the same time to cover the shortage of environmental legislation.
Juvenile criminal cases should be investigated, prosecuted and judged by specialized organs and full-time personnel. China should follow international criminal judicial criteria and implement the relevant laws, such as the Chinese Criminal Procedure Law and the Law on Protection of Minors in China, to promote the specialization of justice organs and the professionalization of justice personnel involved in juvenile criminal cases.
Contemporary studies of Chinese family law generally follow a Western approach, viewing the family as a civil contract. This approach has several flaws. First, it cannot provide an explanation of why so much public attention has been given to family law issues. Second, it fails to understand the logic and practice of family issues in Chinese history. Third, it fails to understand the political significance of the family. This article develops a new and more comprehensive understanding of Chinese family culture and its relationship to political culture. Employing what Clifford Geertz called “thick description,” it studies how people have imagined the family-political nexus in Confucianism, socialism and liberalism as each has characterized a distinct period of Chinese history. It shows Confucian family is an ethical community of restraint of biological impulse; the socialist family is a community of sacrifice and labor; the liberal family is a community of market individuals; and the contemporary Chinese family is a combination of these three traditions. A thick description enables us to understand why there are public debates about family law. What is more, it sheds new light on why China’s march toward the rule of law has not been very successful.
It is widely recognized that a right in rem to movables is to be governed by the law where the movable is located, while party autonomy is confined to the choice of law in contractual matters. Recently there have been calls to extend party autonomy to right in the choice of law in rights in rem to movables. The 2010 Act of the People’s Republic of China on the Law Applicable to Civil Relations with a Foreign Element (the Act) is a legislative move. The question, however, remains whether it is reasonable for mandatory property law to be left to the choice of parties, in particular in an age when transborder movement of movables is frequent. This paper analyzes the issues of party autonomy and applicable law to rights in rem to movables.
Although scholars have long studied the acquisition by American firms of Chinese firms in China, surprisingly little research has been undertaken about Chinese firms acquiring American firms in the U.S. The significance of Chinese outbound M&A deals in the U.S. lies in its demonstration that no all-encompassing, reductive theory can apply to all M&A deals. This is because in each M&A deal considerations vary widely, and these variations are the result of different acquiring firms, target firms, and jurisdictions. China’s outbound M&A deals in the U.S. illustrate this point well for two reasons. Firstly, most cross-border M&A activities involve acquiring firms from developed markets and target firms from emerging markets; by contrast, Chinese M&A activities in the U.S. exemplify emerging-market firms intending to acquire firms in a developed market. Secondly, and more importantly, while the objective among American firms in acquiring Chinese firms is acquiring market share for the most part, the goals of Chinese firms, by contrast, revolve around the more advanced technology and better management offered by American firms. Because China’s outbound M&A activities in the U.S. is a relatively new phenomenon, this article covers some important issues in this generally untapped area based on limited cases, data, and scholarly articles that are available.
Wrongful conviction is the shadow of the criminal justice system. Under this shadow are the flaws and deficiencies of the system, which must be shed light on in order to instigate and promote reforms and improvements to the system. Extracting confessions with torture is a major cause for wrongful convictions in China. The exclusionary rules against illegally obtained evidence should be an effective way to eliminate tortures from criminal justice. The Provisions on Several Issues Concerning the Examination and Evaluation of Evidence in Death Penalty Cases and the Provisions on Several Issues Concerning Exclusion of Illegal Evidence in Criminal Cases and the newly amended Criminal Procedure Law have made progresses in this regard, but we still have a long way to go to turn the laws on paper into the rules in action.
Since the Reform and Opening period commenced, lawmaking in China has made great achievements, constructed a lawmaking institution composed of constitution, laws, administrative and local rules and regulations as the source of law, and a legal system composed of constitutional and related law, administrative law, criminal law, civil and commercial law, economic law, social law, and procedure law. However, lawmaking in China faces new issues needing resolution. This paper focuses on the relation of lawmaking between the National People’s Congress (NPC) and its Standing Committee (SC), between the NPC and the administrative and local organs. Because most laws are enacted by the SC with a small number of elites, but not the NPC with a large number of deputies, the challenge lies in how to represent the people and ensure the people’s character of the laws. As the administrative and local organs enact the rules and regulations, how can their conformation to the Constitution and laws be ensured? Is it enough to only depend on an original deliberative mechanism? China needs to create and develop new mechanisms to resolve these issues.