各国立法上违约金性质比较研究

The Research of Comparative Law about the Nature of Liquidated Damages in Different Countries

违约金诞生于罗马法,至今理论界仍存在很大分歧,这集中表现在两大法系对惩罚性违约金的态度上。我国合同法第114条对违约金性质做了专门规定,但在理论上依然有一些问题引发争论。如何吸收两大法系的经验,及时完善我国违约金制度,避免国际贸易中的合同条款因违背各国的国内强行法而无效,实有必要对各国违约金的性质进行比较研究。

Liquidated damages for breach of contract originated from Roman Law.But great differences are still existing in theory till now.Especially the nature concerning liquidated damages are in heated discussion which is manifested by the attitudes toward punitive penal clauses of the Continental Family and the Common Law System.Concrete regulations are made regarding liquidated damages for breach of contract in article 114 of PRC Contract Law 1999.But many issues in theory have an effect on the application of the law. As a result,it is necessary to make the research of comparative law about the nature of liquidated damages in different countries either from the point of summing up the experience of the two big Law Systems for perfecting Chinese liquidated damages system or from the point of avoiding the invalidity of the contract items running counter to the binding law of other countries.