惩罚性赔偿的行政法反思
赵鹏惩罚性赔偿的行政法反思
Reflection on Punitive Damages from the Perspective of Administrative Law
期刊名称：《法学研究》
期刊年份：
作者：赵鹏
单位：中国政法大学法治政府研究院
中文关键词：行政规制;惩罚性赔偿;职业索赔;请求行政机关履职之诉
英文关键词：administrative regulation;punitive damages;professional claimer;lawsuit requesting the administration to perform duties
中文摘要：
惩罚性赔偿在我国的引入和发展是对行政规制失灵的回应。该制度在激励私人参与公共规制的同时，也带来了过度的、缺乏效率的诉讼，导致法律规范当中不合理、不一致和表意模糊的内容被高度滥用。为此，司法系统需要发展和提高调控私人行动的技术与能力。我国过去偏于倚重行政规制，在此背景下引入惩罚性赔偿，需要在制度设计层面作大量精细化处理，确保惩罚性赔偿与既有行政规制体系的功能相协调，并在制度演进过程中兼顾彼此。
英文摘要：
Traditionally, China has relied heavily on administrative regulation systems to correct misconducts in economic and social life. However, the efficiency of this system is not satisfactory, and the failure of administrative regulation has led to many public accidents that incur a lot of public criticism. The introduction and development of punitive damages in China is largely a response to this failure of administrative regulation. Compared with administrative regulation, punitive damages can stimulate private participation in public regulation through the mobilization of private litigation. While invigorating the entire regulatory system, punitive damages can also bring about excessive and inefficient litigation, and lead to the exploitation of the irrationality, inconsistency and ambiguity in the legal system. In this regard, a necessary institutional condition for the extensive application of punitive damages is to develop a more professional and dynamic judicial system, which can develop and improve the skills and capabilities for regulating private actions. Meanwhile, due to the already existence of complicated administrative regulation, the introduction of punitive damages requires subtle design to ensure that punitive damages are coordinated with the functions of the administrative regulation system. Especially, we should make sure that punitive damages complement, but not overlap with, the corresponding administrative penalties. Finally, like punitive damages, the expansion of the lawsuit requesting the administration to perform duties also expands the role of private individuals in public regulation. China should pay attention to this new situation and ensure that equal importance is attached to both of the two institutions in the process of institutional evolution.
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