违约金的司法调整

Judicial Adjustment of Liquidated Damages

根据合同自由原则,合同当事人在签订合同时,可以约定违约时违约方应支付一定的金额。根据合同正义的原则,合同当事人的此种约定应该受到司法调整。至于司法调整的程度,大陆法系和英美法系的法律制度有区别。笔者在综述违约金司法调整的研究观点,以及列举出当前司法实践调整违约金的问题基础上,就违约金的司法调整问题阐述新的看法。

According to the principle of freedom of contract, when the contract is signed, the parties may agree that the defaulting party shall pay a certain amount in the event of default. To some extent according to the principle of justice in the contract, such agreement should be subject to judicial adjustment. As for the extent of the adjustment of justice, there are difference between civil law and common law legal system. The author airs his view on this topic after summarizing the research on judicial adjustment of liquidated damages and the current judicial practice in adjusting the amount of the damages.