德国法中痛苦抚慰金的惩罚性辨析——兼评我国《侵权责任法》第22条

当许多人还在笃信传统的公私法划分，而拒绝承认损害赔偿责任之惩罚性的时候，德国的司法实践却已经悄然偏离了这一信仰。文章以联邦最高法院的一系列判决为例，证明德国在人格权损害赔偿案件中已经引进了惩罚性，进而厘清作为惩罚性赔偿主要指标的侵害方因素。从这个角度出发，对我国的精神损害赔偿制度的惩罚性进行了比较研究，阐明了侵害人格权的精神损害赔偿具有惩罚性功能的必然性。

On the Punitive Characteristics of Schmerzensgeld in the German Law

While many people still believe in the traditional distinction between the public and private law and refuse to recognize the punitive damages, the German legal practice has already deviated from the principle quietly. The author endeavors to review a series of the decisions of the German Supreme Court and to reveal the fact that the Court has already introduced the punitive damages in the course of the cases with regard to personal right. The most important emotional features of the punitive damages should be detected in those court rulings. The Trace of those features could also be found out in the domestic damage of mental injury, which is necessarily supposed to be both compensatory and punitive.