我国惩罚性违约金制度的理论反思和重构

The Oretical Reflection and Reconstruction of Punitive Liquidated Damages System in China

惩罚性违约金是违约责任领域重要制度之一,其主要功能不是填补损失,而是对合同履行的担保和对违约一方当事人的惩罚。合同当事人对惩罚性违约金的约定属于意思自治范畴,惩罚性违约金制度的重构应当尊重合同当事人的意志。不论在立法层面还是在司法领域,对合同当事人关于惩罚性违约金相关事项的约定不宜过多干预。在不违反公序良俗等私法原则的情况下,惩罚性违约金适用模式、适用范围、数额计算标准及比例调整等,应当以合同当事人的约定为原则,同时兼顾合同双方当事人的利益平衡。

The system of punitive liquidated damages is one of the important system in areas of liability for breach of contract, the main function of punitive liquidated damages is not to compensate for the losses, but to guarantee the performance of contract and to penalize breach of contract party. The contract parties＇ agreement on punitive liquidated damages is belonging to the scope of the autonomy of the contract parties, the will of the contract parties should be respected in the reconstruction of punitive liquidated damages system. No matter in the legislative level or in the judicial field, the contract parties＇ agreement on punitive liquidated damages should not be intervened too much by law. Without violating public order and good customs, it is necessary to respect the will of the contract parties, when applicable model and applicable scope and property and amount adjustment of punitive liquidated damages be determined by judicial confirmation, sometimes, the interests balance of the contract parties should be taken into account.