Punitive Damages Research Articles

Learn how SAFETY Act can help protect athletics venues

ATLANTA — The stadiums and arenas where your school holds its sporting events and other large gatherings may be particularly vulnerable targets of potential terrorist activity, according to security experts. And that leaves your students, staff, and visitors exposed to significant safety risks and your school and department liable for hefty financial and punitive damages.

The Implementation of International Law on the Equal Right of Labor of Transgender Minorities in China: Revisiting the Mr. C. Case

The equal right of labor and anti-discrimination in occupation or employment is guaranteed in international conventions and most domestic laws. Revisiting the Mr. C. case, China should conduct legal reform to implement international law on the equal right of labor of employees including transgender minorities. China should enact an anti-discrimination law to transform international law into Chinese domestic law. Employment or occupational discrimination should be added as grounds for legal action. Reversal of burden of proof should be applied in the trial of the cases concerning equal right of labor, and compensation for emotional damage as well as punitive damages as remedies for the victims should be provided for. Efficiency of labor arbitration and administrative labor supervision should be strengthened in eliminating gender discrimination in employment or occupation.

개정 특허법상 손해배상 규정체계에 관한 소고 : 신설된 징벌적 손해배상 규정을 중심으로

제4차 산업혁명의 시대에 지식재산권의 중요성과 보호의 필요성은 갈수록 커져가고 있다. 지식재산의 확보와 이를 이용한 새로운 부가가치의 창출은 국가의 미래와 직결되는 중요한 문제라 할 것이며 특허의 보호는 그 핵심이라 할 수 있다. 특허법은 침해행위에 대한 금지청구권과 손해배상청구권을 통하여 특허를 보호하고 있지만 특허의 특성상 침해 여부의 판단이나 손해액 산정에 있어 이를 주장하고 입증하는 것은 매우 어렵다. 우리 특허법은 각종 추정 규정의 도입 및 의무의 부과를 통하여 특허의 특징에 맞는 보호체계를 구성하고자 하고 있으며, 여러 차례 개정을 통하여 특허권의 보호를 강화하고 있는 추세이다. 하지만 현실은 외국과 비교하여 침해에 대한 배상액이 매우 적을 뿐 아니라 침해소송의 결과에 있어서도 매우 낮은 승소율을 보여 왔다. 이로 인해 산업현장에서 특허에 관한 부정적 인식이 확산되고 특허의 중요성이 약화되어 기술 개발에 매진하기 보다는 특허침해가 만연하게 되는 악순환이 계속되어 왔다. 이런 상황에서 오랜 도입 논의 끝에 2018년 말 징벌적 손해배상 규정이 포함된 특허법 개정안이 국회를 통과하여 2019년 7월에 시행되게 되었다. 입법자의 의도는 산업경쟁력이 뛰어난 첨단기술 보호의 중요성을 감안하여 지식재산권 보호를 강화하고 그에 따른 사회적 효용확대라는 선순환을 기대하고, 지식재산권 침해 문제에 대한 국민의 인식을 제고하고자 하는 것으로 보인다. 개정 특허법상 징벌적 손해배상의 도입은 사회적으로 큰 문제가 되고 있는 중소기업에 대한 기술탈취의 방지 및 특허권자의 권리 보호를 강화하는 데 있어 도움이 될 것으로 기대된다. 본고에서는 우리 특허법상 손해배상 규정 체계와 신설된 징벌적 손해배상 규정의 내용 및 도입과정에서 논의되었던 쟁점들을 살펴본다. 신설된 징벌적 손해배상 규정은 입법과정에서 악의적이란 용어를 배제하고 ‘고의적’이란 용어를 사용함으로써 중과실을 제외하였고 징벌적 손해배상액을 산정함에 있어서도 ‘고의 또는 손해 발생의 우려를 인식한 정도’를 판단기준의 하나로 규정한 점 등에 비추어 고의침해의 판단은 앞으로 해당 규정을 실제 운용함에 있어 가장 중요한 쟁점이 될 것이며 관련하여 변호사 의견서의 역할 등도 중요한 쟁점이 될 것이다. 이러한 쟁점들에 대하여 선도적으로 징벌적 손해배상제도를 운영해 온 해외의 논의 및 사례의 분석 등을 통하여 신설된 제도의 운용상 주의할 점 및 개선점 등을 논의한다.

The Sperminator As a Public Nuisance: Redressing Wrongful Life and Birth Claims in New Ways (AKA New Tricks for Old Torts)

Faced with an increase in sperm bank “accidents” – the lacuna of suitable legal redress for sperm-bank imposed harms begs to be filled. This article demonstrates for the first time that some sperm-bank generated harms transcend violating the personal goals of the parent and the rights of the child. In addition, sperm bank errors infringe on societal rights by, for example, saddling it with health costs for children born with genetic diseases. Moreover, introducing inherited diseases into the gene pool in large numbers sets the stage for a public health crisis. To address these harms, I propose repurposing an old of cause action, the private claim of a public nuisance. This harm-driven approach expands the class of would-be plaintiffs, broadens the spectrum of allowable claims, and bypasses restrictions imposed by traditional negligence law. Insofar as punitive damages are also allowed, the claim also has the potential to act as a deterrent of a host of sub-par sperm bank practices. I also discuss the implications of holding the sperm bank to fiduciary standards.

The Impact of Juror Knowledge of Deductibility and Defendants’ Tax Rates on Punitive Damages Awards: Experimental Evidence

The US Tax Code allows defendants to treat punitive damages as an ordinary and necessary business expense, thereby reducing their taxable income. Legal scholars posit that jurors are unaware that punitive damages are tax-deductible. Consequently, they claim that there is an under-punishment problem because defendants are penalized at lower damages amounts than they would be if jurors were instructed about tax-deductibility. We conduct an experiment to test this claim. We provide mock jurors with information about tax-deductibility as well as information about the defendant’s (historical) effective tax rate (ETR) to provide some context to jurors to adjust their awards, if they choose to. We find that jurors who are explicitly instructed that punitive damages are tax-deductible award higher damages, but only when the defendant’s ETR is low. When the defendant’s ETR is high, instructing jurors about tax-deductibility does not result in significantly higher punitive damages awards. This result is surprising because defendants with a high ETR are likely to benefit more from tax-deductibility compared to defendants with a low ETR. Our results suggests that jurors evaluate tax-deductibility jointly with other elements of a defendant’s tax situation when that information is provided. Therefore, jury instructions about tax-deductibility of punitive damages should carefully consider the implications of providing additional information about the defendant’s tax situation. Our result should be of interest to regulators and scholars in law, accounting, and public policy.

저작권법상 징벌적 손해배상제도의 도입에 관한 소고

저작권법상 징벌적 손해배상제도의 도입에 관한 소고

Rethinking Political Power in Judicial Review

For decades, scholars have argued that the proper judicial response when democratically enacted laws burden politically powerless minority groups is more aggressive judicial review. This political process approach, however, has fallen on deaf ears at the Supreme Court since the 1970s. Justice Scalia was thus accurate (if not politic) when he derided political process theory as an “old saw” of constitutional law. There is a different role that political power may yet play. The key to seeing it is to focus on the other side of the political power spectrum. Courts can be attentive to situations when the groups burdened by a law are politically powerful, not just when they are powerless. Political power’s presence, I want to suggest, can be a good reason for judges to defer to democratically enacted laws, even if one thinks its absence is a bad reason to strike laws down. This Article advances a positive and normative case for an approach to judicial review that is attuned to political power. As a positive matter, it turns out the Supreme Court has employed such an approach in a number of decisions, including in opinions joined by seven of the nine current Justices. And as a normative matter, treating political power as a reason for judicial deference may help unlock the democratic and institutional benefits of leaving contested constitutional questions to the political branches without sacrificing the role of courts in safeguarding individual rights. The Article concludes by applying these insights to five contemporary disputes in constitutional law: the rise of First Amendment Lochnerism, gun control and the Second Amendment, same sex marriage, due process limits on punitive damage awards, and the closely-regulated industries exception to the Fourth Amendment warrant requirement.

Big Data Analysis: Medical Accident

Background/Objectives: Medical accidents have been happening in major large hospitals and real-time search queries for portal sites are increasing. We purpose to provide basic data on medical dispute resolution and medical accident prevention.Method/Statistical Analysis: We based data collected through educational and academic information sources(RISS) and *aver search as big data, and analyzed the keywords and the network analyzed by the ‘Medical accident’ keyword. The frequency, ranking, and connection of the keywords were analyzed through the process of processing the collected unstructured text into the data suitable for research and analysis.Findings: As a result, in case of the academic research related to the medical accidents, the study on the medical dispute is most active. In the analysis of the network, the medical accidents lead to the medical disputes and are mostly resolved by law in a manner that judge criminal responsibility and other responsibilities(punishment and compensation).Analysis of search words from news, blogs and Internet cafes, and the most frequently mentioned keyword related to medical accidents was criminal responsibility. In the analysis of the network it will be as follows: the handling of medical accidents involving criminal liability and other liabilities shall result in punitive damages resulting from legal proceedings or monetary damages resulting from civil agreements.Improvements/Applications: We suggest that the human, institutional, and physical environment should be improved to avoid medical accidents, conflicts and litigation.

Tendencije u oblasti nepažnje medicinskog osoblja, sa posebnim osvrtom na Mađarsku

Medical negligence has long been in the focus of legal research in most countries. In some countries, the negligence standard has been replaced by the avoidability standard, the latter leading to a no-fault system. Nonetheless, most legal systems apply the negligence standard. In my opinion, the negligence standard should be sustained because, despite the undoubted advantages of the no-fault system, the 'good old law' on medical negligence promotes greater legal certainty and patient safety. Criminal medical negligence differs from civil medical negligence as regards onus, as well as in other ways. In the UK, many lawyers and physicians have protested against the legal practice of gross negligence manslaughter, an effort which may also serve as an example for other countries. In most continental European countries, the enforcement of a foreign punitive damages judgment would run counter to the ordre public; however, in some countries, such as in France and Hungary, a punitive damages judgment might be enforced.

An Inexplicable Riddle - No Uniformity in Awarding Punitive Damages on Infringements of Trade Marks by Indian Courts - A Comparative Study

An Inexplicable Riddle - No Uniformity in Awarding Punitive Damages on Infringements of Trade Marks by Indian Courts - A Comparative Study

Changing State Behaviour: Damages before the European Court of Human Rights

Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights system, non-compliance with the judgments of the European Court of Human Rights (ECtHR) remains a major problem for the Council of Europe. This article asks how we can change state behaviour and what role, if any, could damages play in this context. First, the article focuses on how the choice of remedy affects compliance and why aggravated or punitive damages look like an ideal option to nudge states into compliance. I explore recent arguments by scholars and judges who argue that the ECtHR should actively shift its approach (or perhaps already has) to nudge state behaviour towards compliance and prevention of future violations. Based on my empirical research, I show that the current case law presents several obstacles to the introduction of such damages. Building on the economic analysis of the law and insights from behavioural sciences, I reveal how the Court’s approach fails to comply with any of the elements needed to incentivize states to change their behaviour. I finally question to what extent aggravated or punitive damages can be efficient within a system that relies on voluntary compliance.

기업범죄 예방을 위한 상사법의 대응방안* – 내부통제제도와 징벌적 손해배상제도를 중심으로-

현대사회에서 기업은 중요한 경제활동 주체의 하나이다. 기업이 사회에서 차지하는 비중이 커질수록 기업범죄로 인한 피해도 폭넓고 심각해지고 있다. 종래 기업범죄에 대하여는 처벌을 강화하는 등 사후적 대책이 주를 이루고 있었다. 그러나 기업범죄를 막기 위한 지속적인 제도정비에도 불구하고 실질적인 규제효과를 기대하기 어렵다. 따라서 기업 스스로가 기업범죄를 예방하고 규제내용을 준수하고자 하는 자발적인 의지가 가장 효과적인 규제방안이라고 할 수 있다. 즉, 제재위주의 규제가 아니라 기업범죄를 예방하기 위한 방식으로 규제의 기본방향을 전환할 필요가 있다. 이와 함께 기업범죄에 대한 사후적 제재를 강화하는 제도적 보완도 필요하다.본 논문에서는 기업범죄에 대한 상사법의 대응방안으로서 두 가지 제도를 검토하였다. 첫째, 기업범죄를 사전에 예방하기 위한 기업지배구조의 개선방안으로서 내부통제제도의 구축·운용에 관한 문제를 다루고 있다. 우리나라의 내부통제제도에 관한 현황을 살펴보고 그 문제점과 개선 방안을 제시하고 있다. 둘째, 사후적 제재의 강화방안으로서 징벌적 손해 배상제도를 검토하고 있다. 이는 위법행위에 의하여 취득한 이익에 대하여 막대한 금전적 제재를 부과하여 그 유인을 제거함으로써 기업범죄를 효과적으로 억제할 수 있기 때문이다. 우리나라의 징벌적 손해배상제도의 도입 여부에 관한 논의와 입법현황을 정리하고, 그 문제점과 개선방안을 제시하고 있다. 결론으로서 기업범죄는 이를 예방하기 위한 기업 자체의 노력과 함께 그 동기를 제거하기 위한 엄격한 제재가 조화를 이룰 필요가 있다.

Punitive Damages in the light of car fire case: A Study on the Paradigm Shift to Preventive Damages

Punitive Damages in the light of car fire case: A Study on the Paradigm Shift to Preventive Damages

Current Status and Problems of Domestic Legislation on the Punitive Damages

Current Status and Problems of Domestic Legislation on the Punitive Damages

Analysing the Notion of ‘Consumer’ in China’s Consumer Protection Law

The notion of ‘consumer’ in Article 2 of the People’s Republic of China (PRC)’s Consumer Protection Law has been subject to criticism as it is vague, can be difficult to apply to real life situations, and is also at odds with the notion of a ‘consumer’ found in other jurisdictions around the world. This article will discuss the Chinese legislative definition of a ‘consumer’ from a comparative perspective before considering how this notion has been applied by the courts, by analysing several Guiding Cases issued by China’s Supreme People’s Court (SPC) and judgments in which the Guiding Cases have been subsequently applied. The article will then consider the delicate balance that the courts in China are attempting to strike between encouraging consumer claimants to pursue fraudulent traders and yet discouraging consumers from exploiting the punitive damages provisions of the PRC Consumer Protection Law. Thus, this detailed analysis of the legal notion of a ‘consumer’ in China offers a unique and powerful insight into the wider role of consumers within the Chinese legal system.

성적괴롭힘(성희롱)관련 법적 쟁점

The Equal Employment Opportunity Act, the Gender Equality Basic Law, and the National Human Rights Commission Act have been endeavoring to solve the problems that have arisen steadily over the past two decades. Nevertheless, there are many issues with the laws. First, sexual harassment tends to be considered small or light, unlike sexual violence. Based on the legal definition of sexual harassment, sexual harassment is viewed as a problem of a particular woman who is sensitive to sexual sensitivity. The laws also do not include customers, self-employed, and business-related people to the scope of sexual harassment parties. In addition, the sexual harassment prevention education shows problems in that some leaders did not join in the education and that types of education are not effective. There are problems such that the offenders are not disciplined properly. In this regard, I suggest changing the legal definition of sexual harassment from victim-centered to offender-centered. Also it is necessary to amend the article including clients, self-employed, and business-related people in the category of sexual harassment parties and to enact the articles for punishing offenders and punitive damages for realizing discipline. In addition, the victims’ right to claim for leave of absence and the right to veto work should be newly established. The articles of the laws should be amended to include gender sensitivity and second damage in the sexual harassment prevention education contents.

Making Sense of Time Value of Money and Agency Considerations in Structuring Legal Settlements in Canada

In countries following common law practices, courts award compensatory or punitive damages to aggrieved plaintiffs in civil trials. Given the growing litigious nature of the public, many parties on the defending side have lobbied for caps to be placed on these settlements as they may be quite large. Courts rely on expert witnesses, such as actuaries and time value of money experts, to provide a quantum of the damages, which will either be paid in a lump sum upfront or spread out over a finite period. On the opposite side are lawyers representing the plaintiff arguing against caps in advocating on behalf of victims. This paper examines the issues associated with the structuring of these settlements from a financial perspective.

Moses’ Restatement of Torts: Modern Principles of Justice and Efficiency in the Mishpatim

Nineteen verses from the mishpatim (Exodus 21:18-22:6) address a surprisingly wide variety of tort doctrines such as the privilege of discipline, transferred intent, proximate cause, premises liability, punitive damages, self-defense, defense of property, trespass to chattels, conversion, trespassing livestock, and abnormally dangerous activities. While some of this passage from the mishpatim focuses on non-tort principles, most notably fundamental human dignity, the tort law of the mishpatim, at its core, appears to be a corrective justice based rule of strict liability for intentional and accidental harm caused by an actor’s voluntary conduct.

Learn how SAFETY Act can help protect athletics venues

ATLANTA — The stadiums and arenas where your school holds its sporting events and other large gatherings may be particularly vulnerable targets of potential terrorist activity, according to security experts. And that leaves your students, staff, and visitors exposed to significant safety risks and your school and department liable for hefty financial and punitive damages.

A Study on Product Liability and Punitive Damage in South Korea

A Study on Product Liability and Punitive Damage in South Korea