Punitive Damages in European Private Law资料.pdfVIP

Punitive Damages in European Private Law by Gerhard Wagner Forthcoming in: Jürgen Basedow, Klaus J. Hopt and Reinhard Zimmermann (eds.), Handbook of European Private Law Electronic copy available at: /abstract=1766113 Punitive Damages I. History and terminology The private law of torts (or delict) and the criminal law share the same roots. In Roman law, the law of delict developed as a sort of ‘private criminal law’ in the form of the actiones poenales. They were later combined with the actions rei persecutoriae, which dealt mainly with compensation. Even the eminent German jurist of the 19th century Friedrich Carl von Savigny did not hesitate to acknowledge the penal character of civil liability. In his opinion, the law of delict served not only to compensate the harm caused but also to mete out retribution in order to deter and to reform. Within the common law of torts—which, ironically, is more closely related to classical Roman law than its continental European counterpart— the sanctioning character of liability is explicitly acknowledged even in the present day. Damages are not only awarded in order to compensate a loss, but also as a means to control future behaviour and to effect retribution. The clearest example of this can be seen in US jurisdictions, in which judges (or juries) are authorized to impose ‘punitive damages’ for purposes of punishment and deterrence where the behaviour in question is thought to be particularly reprehensible. II. European legal systems 1. Recognition of judgments Even though Roman law acknowledged the penal character of liability in damages, its modern successors—the continental European civil law legal systems—reject the deterrence and penal functions of civil liability. The Ame