论惩罚性赔偿责任的可保性

惩罚性赔偿因具有的惩罚性和吓阻性,而具有准刑事罚的性质,其责任也被认为具有准刑事责任的性质。这在学界已成共识。但惩罚性赔偿责任可否经由保险而转嫁风险,即惩罚性赔偿责任是否具有可保性,分歧甚大。美国法院也有不同做法。单纯从经济学的角度看,可以不否认惩罚性赔偿责任的可保性,但基于惩罚性赔偿制度的功能和力图实现法律价值的考量,若允许其可保,就会使惩罚性赔偿的功能丧失殆尽,致该项制度形同虚设,故其应不具有可保性。

On the Insurability of Punitive Damages

Punitive damages is quasi-criminal in nature . And the money of punitive damages can be regarded as quasi-penalty. The insurability of punitive damages liability is a focus for many years. Deferent attitudes have been taken in deferent courts in America. Some courts accept its insurability , some courts refuse its insurability ,and some courts accept indirect liability of punitive damages. The author's point is that the liability of punitive damages can't be insured, because punitive damages are based on an entirely different public consideration to punish the defendant or of setting an example for similar wrong doers.