关键词: 惩罚性赔偿, 特殊构成要件, 避责可能性

Abstract: Outside the framework of traditional elements of tort liability， the calculation model of punitive damages amount was preliminarily constructed by American scholars Polinsky and Shavell， which takes “the possibility of evading liability” as a special element. In China， the general elements of tort liability centered on the traditional theory of “four elements” rarely distinguish “the possibility of evading liability”， which leads to the risk of generalization in the judicial application of tort punitive liability， and the lack of objective， scientific， reasonable and operational calculation of punitive damages amount. Taking Article 47 of tort liability law as an example， this paper analyzes the feasible approach to localize the special elements of tort punitive liability， which includes three aspects， i.e. the identification path of special elements with the tool of advanced review of “external identification-internal identification”， the calculation of punitive damages amount based on the consideration of deterrence effect， and the possibility determination based on the determination of “the possibility of evading liability” of the individual case.

Key words: punitive damages, special elements, possibility of evading liability