论迟延履行违约金诉讼时效的起算

On the Beginning of the Limitation of Action in Case of Breach of Contract Damages in Respect to the Delay in Performance

迟延履行违约金因其递增性而具有金额的持续变动性、与迟延履行的关联性、各期债权产生原因的同一性、履行期的未定性等特征,其性质是作为次债务的一种约定的、转变的损害赔偿之债。现行法对其诉讼时效自何时起算无明确规定,导致理论与实务中缺乏统一见解。现有的四种立场均存在理论逻辑和可操作性上的不足。此类违约金之债的诉讼时效应从履行迟延终了时起算,这符合诉讼时效的基本宗旨和迟延履行违约金设定的本意,也更为公平合理。

Due to its nature of progressive increase, breach of contract damages in respect to the delay in performance has the characteristics such as sustained change of damage amount, the relevancy to the delay in performance, the sameness of causes leading to credit, and the uncertainty of performance period. Breach of contract damages in respect to the delay in performance, in essence, is a kind of obligation of damages agreed on as a secondary debt. As the present law does not define clearly when the limitation of action in case of breach of contract damages in respect to delay in performance begins, there lacks a unified understanding in theory and in practice. And none of today＇ s four standpoints can be supported by theoretic logic and operational functions. The author points out that limitation of action with respect to obligation of breach of contract damages should begin with the end of delay in performance. This approach is consistent with the basic objective of limitation of action and the original intent set for breach of contract damages with respect to the delay in performance, and is also more fair and reasonable.