论违约金数额的司法调整

Art of Unlocking-Research on the Judicial Adjustment of Amount of Liquidated Damages

违约金制度集损害赔偿额预定和合同履行担保于一身,两者消灭其一都将会造成违约金与其他制度设计的同化性。而对违约金数额的司法调整,在一定程度上来说是对违约金制度价值的削弱,不过基于实质正义的考量仍有必要。如何兼顾违约金的制度价值与对实质正义的追求,就成为法院行使违约金数额司法调整权的终极目标。

The system of liquidated damages contains both certain quota of compensation for damage and guarantee for the performance of contract. It can be assimilation of other system when removed either of the above two. The judicial adjustment of liquidated damages is as weakening of the system value of liquidated damages. However, when considering substantive justice, it would be deserved. So, how to give consideration for both the system value of liquidated damages and the pursuit for substantive justice will be the ultimate target of the power to nm the judicial adjustment of the amount of liquidated damages by the court.