Proper Substitutions of Punitive Damages Involving Public Welfare -- On the Improved Administrative Fine & Its Offsetting Mechanism with Criminal Fine

Abstract

For the purpose of enhancing sanction and deterrence effects, many scholars support the establishment of punitive damages involving public welfare in china. Because this legislative proposition involves a paradox and many conundrums yet to be resolved, this paper holds a negative attitude towards it. As an alternative, China can use the improved administrative fines and the criminal fine penalty to fully protect public welfare. Theoretically, civil public interest litigation (CPIL) should be divided into two categories: the pure civil public interest litigation (PCPIL) and non pure civil public interest litigation (Non-PCPIL). The former consists of CPIL involving indivisible public interests and CPIL involving unspecified large number of harmed private interests; The latter consists of diffusive CPIL and composite CPIL. In terms of law application, there is an “overlapping relationship” between CPIL involving unspecified large number of harmed private interests and composite CPIL. Only PCPIL involves the question of whether to use the proposed system of punitive damages for harmed public interest, or the improved administrative fines and the criminal fine penalty to attain the legal effects of sanction and deterrence. The so-called improved administrative fines is actually an administrative penalty combination composed of large sum fines, continuously calculated daily fines, the system of double fines, the system of both fines and confiscation as well as other administrative penalty measures. As the premise of offsetting administrative fines and criminal fine penalty, the connecting mechanism between administrative laws and criminal laws is actually a two-way lane - administrative punishment before the related criminal proceedings and administrative punishment after the related criminal proceedings. In terms of those two ways, their offsetting of administrative fines against the related criminal fine penalty must follow different principles and specific requirements. In order to fully protect the related public welfare, there should be exceptions to the principle of severe punishments absorbing the light punishments. In China, the legal protection of public welfare is extremely complex. In terms of the identification of the legal liabilities of the law-breakers, legislators and law enforcers should comprehensively consider the relationship and coordination among civil liabilities, administrative liabilities and criminal liabilities.