The punitive damages system, which had existed in the most of the countries of the ancient society, had been shrinking in the application fields. The punishment and control function of the system had disappeared in the countries of the continental legal system, except in the countries of the Anglo-American law system, as the criminal liability and the civil liability had been strictly parted. Further more, as the modern law system and the law theory are growing up, the punitive damages system has been one of the criminal punishments and the default of the civil liability or the damages for tort just take making up the compensatory damages as its purpose.

In the modern society, the mass-produce, the mass sales and the mass consumption have created great added value for the human’s society, but also bring great risk to human’s life and safety. Especially because of tort acts which are conducted by the production and sales companies which will evoke the serious hazard, the appearances that the many accidents are mass produced are recurrent. Therefore the countries of the continental legal system are self questioning their previous understanding that making up the actual damages is the essential purpose of the damage system, and their intention to revise the traditional damage system is more visual.

As the solutions to the problems, focusing on the subjective psychological state of the attacker, discuss about the punitive damages system of the Anglo-American law, which to prevent the recurrence of the tort though punishing the injurious acts, is positively spread. Further, welcoming the global times, considering about the fast developing homogenization and convergence appearance of the law system between the countries of the continental legal system and the Anglo-American law system and the international trend of the law for tort, there is no reason to refuse the punitive damages system just because it is not fit for the traditional law theory and system. The request that the law regulation should be fit for the times and the international trend can not be denied, and one could not expect the practicability of the law system when the regulation is away from the reality of the law of the country. If the punitive damages system could reflect the law consciousness and the law status of the certain countries, there will always be the positive necessity to lead it in.

Through punishing the misconducts, the punitive damage system controls the recurrence of the tort of the attacker and other potential third party. It is the purpose and further more the main function of the punitive damages system and it is also the reason for catching people’s eyes to be the optimal system which could get over the inner limit of the reparative damages system. About the punitive damages system, although many countries have many differences in the matter of acceptance and application fields, it has been acknowledged for using on the willful and baleful misconducts.

But the basic function of the damage system of the civil law ignores and leads the punitive damages system in blindly or makes flexible use of it because of exaggerating the function of punitive damage system, still should be avoided. As known by all, the punitive damages system is the system which combines the factors of both the criminal law and the civil law. In other words, in order to lead it in or use it, the insight and the analysis should go first because the punitive damages system is the foreign system which difficult to meet the traditional law theory and the law system of the continental legal system. Especially, the countries of the Anglo-American law system or the continental legal system, should review the lawmaking and judical experiences, which have got by leading in and using the punitive damage system, carefully, develop the punishment and control function of the punitive damage system to the utmost and overcome the disadvantages which including the unbridled sentences of the great number damages.

Taking above discussion as the outline, from the functional point of view, the purposes of this paper are that compare the right function and adverse effect of the punitive damages system and judge the possibility of leading it in; clarify that how to decide the tolerance range of the punitive damage system by what kind of reference and standard if the necessity of leading it in has been accepted by the current law status.

To achieve the goal, this paper develops the composing like below.

Chapter one, the prologue, gives the research purpose and direction of the paper. Besides, the research rage and method, it uses several kinds of methodology to meet the research goal, and gives the total structure of this paper.

In the Chapter two, after analyzing the common theory of the damages, it analyzes the concept, the formation, the developing process and diverse functions of the punitive damage system.

In the Chapter three, it looks into the current situation of system operation of the countries who are using the Anglo-American law system and who are headed by the England which is the headstream of the punitive damages system.
And at the same time, it analyzes the situation and the lawmaking attitude, which about the
punitive damages system, of the main countries of the continental legal system.
The purpose of this chapter is, especially through the comparative analysis of the law, to get the hint of the legislation.

In the Chapter four, from the functional point of view, it demonstrates the validity of the punitive damages system and goes through the theories and the legislative discussion about the tolerance rage of it. In other words, in this chapter, basing on the disadvantages of the compensatory damage system, from the functional point of view, after analyzing the possibility which can stop the gaps in several kinds of system, it tells that the punitive damage system is the best system which can supply the gaps of the reparative damage system. Therefore, taking it as the foundation, it analyzes the theories and the legislative discussion about the acceptance elements, application fields, the subject of the punitive damages, the calculation and the affiliation of the punitive damages, the relationship between punitive damages and the insurance system and the acceptance and the execution of the punitive damage sentence. This chapter is the core of this paper.

The Chapter five, the ending, after summarizing the analysis above, it introduces the willing answer of this paper basing on the legislative status and the discussion of the countries about the punitive damage system.

The conclusion of this paper is as bellow.

First, because the punitive damages system is always just the helping system of the compensatory damage system. So the acceptance rage of the punitive damage system should be limited and the punitive damage system should be set in the form of special law. In other words, it will be more suitable to have the form of special law which takes the tort of the special areas as its target than have the form of common regulation which takes tort as its target.

Second, on principle, the punitive damages should be limited in the willful and baleful illegal acts and the breach of contract. In other words, the point of it is that the acceptance elements of the punitive damages are stricter than the common compensatory damages. The purpose of the punitive damages is to control, further more, to stop the abominable and unbearable misconduct, so the common illegal acts and default should not be the targets of the punitive damages.

Third, the calculation of the punitive damages is the terminus of the system. The accuracy of the calculation is the important problem to the goal realization and the function effects of the punitive damages system. Therefore, in the calculation of the punitive damages, using what kind of standard to fully develop the punishment and control function on the misconduct and achieving the goal of the system are more important than the uniform standard. So the many kinds of standards of the countries of the Anglo-American law system are important, but like the countries of the continental legal system which fixes the times in the legislation, it is still one of the more multiple methods which can avoid the unbridled idea of the judge first in the calculation of the punitive damages. But there is still disadvantage which could halve the function of the punitive damage system because the way of fixing times could lower the predicted punishment to the inflictor.

Fourth, the punitive damages’ affiliation problem is the subsidiary problem which brings by the calculation of the redundant punitive damages. In other words, mainly in the U.S.A., because there is no limitation on the rights of the jury on the punitive damages,
the accuser will get the whole redundant punitive damages, and just bring the affiliation problem which deals with the illegal profit.
To solve the problem, it can use the methods that strictly control the application fields of the punitive damages or control the calculation of the punitive damages by fixing the times.

Fifth, the problem which has provoked more argues in the times that leading insurance system in the punitive damages or not is a kind of area which needs the law policy valuation. Although there could not be no way to get the coexistence between the punitive damage system and the insurance system, on the whole, it gives the same feeling that accepting the insurance in the punitive damages will hurt the function and the purpose of punishment and control of the punitive damage system. Especially at the moment of perfecting the law system and limiting the high line of the damages for worrying about the exaggerated calculation of the punitive damages, if it still allows the use of the insurance, there could not be no possibility to lose the existence value of the punitive damage system. So it should not confirm the use of the insurance in the punitive damages.

Sixth, now, in the countries of the continental legal system, there is hard to find the example of entirely admitting and executing the punitive damage sentence which made by the countries of the Anglo-American law system, and they just refuse or partly admit and execute the part which fit for the law system of their own countries. Of course, admitting and executing the sentence of foreign countries is the great important matter which concerns with the sovereignty and the judicial authority of the countries who have admitted, so the problem should be carefully dealt with according to their own law system and public order standard of those countries. But at the moment of the booming globalization, there is no reason to refuse the system or the sentence unlimitedly just because they come from the foreign countries.

The civil law system, especially, is the formal synthesis which totally reflects the consciousness and the status of the social economy in a certain times. Although it is the society which has the strict division in the application fields of the civil law and the criminal law, the appearance of the high hazard and the actor’s expanded possibility of harm are testing the limitation of the recent damage system which has been limited by the compensatory damages. Lately, in the countries of the continental legal system, there is the tendency to make the punitive damages system accepted or repeat the legislative proposal which for leading the punitive damages system in. If strictly clean breaking the regular pattern of the law brings bad result to the law justice which is the control of the damages and illegal act, it is the time to show tenderer attitude to lead in the punitive damage system. The propriety of the problem, accept the punitive damages system in what area and with what elements, should be considered according to the tradition and status of the countries.