摘要
经营者生产、销售伪劣产品的场合经常会发生惩罚性赔偿责任和刑事责任的竞合。从惩罚性赔偿的属性来看,其与刑罚同属于惩罚措施,具有准刑罚性,因而同时适用惩罚性赔偿和刑事责任便会有“双重处罚”的危险。虽然有观点认为惩罚性赔偿对于刑法规制有弥补刑事处罚漏洞的特殊功能,但由于受到罪刑法定原则的制约,刑法漏洞无法通过其他部门法弥补,且在产品刑事责任领域并无弥补漏洞的必要。既然可以通过刑法手段追究产品经营者的责任,原则上就不需要再另设惩罚性赔偿制度。但考虑到现行立法已经引入了惩罚性赔偿制度,必须通过合理方案解决惩罚性赔偿与刑事责任的适用冲突问题。具体建议包括:禁止民事公益诉讼提起惩罚性赔偿、通过折抵避免重复处罚以及惩罚性赔偿的数额确定应符合比例原则等。
When business operators produce and sell counterfeit and inferior products, the concurrence of punitive damages liability and criminal liability often occurs. Judging from the nature of punitive damages, it belongs to the same punitive measures as punishment, and is therefore a kind of quasi-penalty. Therefore, if punitive damages and criminal liability are applied at the same time, there is a danger of “double jeopardy”. Although some scholars believe that punitive damages have a special function in the regulation of criminal law—to make up for the loopholes in criminal punishment which cannot be made up by other departmental laws due to the restriction of the principle of nullum crimen sine lege. And as a matter of fact, however, there are no loopholes in the field of product criminal responsibility. Since the product providers can be held accountable by means of criminal law, there is no need to set up another punitive damages in principle. However, considering that the current legislation has introduced a punitive damages system, it is necessary to resolve the conflict between the application of punitive damages and criminal liability in a reasonable way. Specific suggestions include: prohibiting civil public interest litigation from filing punitive damages, avoiding repeated penalties through deductions, and determining the amount of punitive damages in accordance with the principle of proportionality, etc.
出处
《中外法学》
CSSCI
北大核心
2022年第5期1299-1319,共21页
Peking University Law Journal
基金
国家社科基金重大项目“网络金融犯罪的综合治理研究”(项目编号:17ZDA148)的阶段性研究成果。
关键词
惩罚性赔偿
刑事责任
一事不再罚
产品责任
Punitive Damages
Criminal Liability
Ne Bis in Idem
Product Liability
