论惩罚性违约金的合理性——从体系化的视角评析我国合同法114条

Discussing on the Rationality of Punitive Penalty——A systematic-viewpoint evaluation on article 114 of Chinese Contract Law

我国现行合同法的违约金规则兼有赔偿性与惩罚性的内容,从而引起立法与司法实践的混乱,甚至使违约金规则常常被赔偿损失所取代。从体系化的视角出发,惩罚性的违约金更具有合理性。因此,惩罚性违约金的理念应该贯穿关于违约金的全部法律条文,废除体现赔偿性理念的法律条文,让守约方在违约金问题上具有进退自由的主动权而让违约方处于被动地位。

The simultaneity of contents of compensation and penalty stated by penalty rules in current Chinese Contract Law contributes to disturbance occured therefrom in legistlation and judicial practices, and even to replace of penalty rules with indemnity. Observed from a systematic viewpoint, penalty as a punishment, the notion reflecting of greater rationality, should be embedded in law provision concerning penalty while its counterparts of indemnity must be made obsolete. Such differentiation provides observant party with an initiative in penalty disputes, leaving the contract -breaker at unfavorable stage.