英国罚金规则的演进及对我国违约金司法酌减的启示

The Historical Evolvement of British Penalty Rules and its Enlightenment to the Judicial Discretionary Reduction of Liquidated Damages in China

普通法系国家采用罚金规则对违约金进行限制。罚金规则起源于中世纪晚期的英国,发展至今共经历了三个阶段:起源与完善阶段;传统罚金规则阶段;2015年后新罚金规则阶段。罚金规则几百年经久不衰的原因在于它有体系根据和政策根据作为支撑:它既与英美合同法中的违约救济原则保持一致,也具有鼓励效率违约、优化资源配置、促进市场交易的作用。我国违约金司法酌减实践存在着司法干预频繁、酌减幅度过大等问题。英国罚金规则的演进给我国违约金司法酌减实践带来的启示是:第一,要提高判断违约金过高的比较标准,将债权人的全部合法利益(包括非财产利益)纳入综合考量范围内;第二,审慎干涉商事合同中的违约金条款,特别对于缔约能力对等的商主体所达成的违约金条款。

In common law countries,penalty rules are used to limit the excessive liquidated damages.The penalty rule originated in England in the late Middle Ages,and have experienced three stages:the stage of origination and formation;the stage of traditional penalty rule;the stage of new penalty rule after 2015.What behind the popularity of the penalty rule is its strong justifications,justification in contract law system and justification in policy:it is not only consistent with the principle of remedy for breach of contract in Anglo American Contract Law,but also has the function of encouraging efficient breach of contract,optimizing resource allocation and promoting market transaction.There are some problems in the practice of judicial discretionary reduction of liquidated damages in China,such as frequent judicial intervention and excessive discretionary reduction.The evolution of the British penalty rule has brought enlightenment to the practice of judicial discretionary reduction of liquidated damages in China:first,we should improve the comparative standard for identifying the excessive liquidated damages,and take all the legitimate interests of creditors(including non property interests)into consideration;secondly,we should prudently interfere with the liquidated damages clause in commercial contracts,especially for the liquidated damages clause reached by the commercial subject with equal contracting capacity.