《合同法》第114条(约定违约金)评注

Comments on Article 114 of Contract Law(Agreed Payment for Breach of Contract)

《合同法》第114条中的违约金属于约定的违约责任,可表现为确定金额或计算方法,兼具补偿功能和担保功能。违约金发生给付效力以有效的违约金约定和相应的违约情事为要件。针对迟延履行以外的违约形态所约定的违约金,原则上属于对相应违约行为所引发之全部损害的赔偿总额预定,此乃处理违约金与法定违约责任关系的关键。违约金可与合同解除并行适用,不应适用不定期债务诉讼时效的起算规则。《合同法解释(二)》第28条、第29条针对违约金司法调整所规定的"实际损失"应理解为包括所受损失和所失利益在内的可赔损害。违约金司法增额规则属于司法裁量权介入机制,与违约金作为损害赔偿最低额预定有所不同。

As agreed liability for breach of contract,agreed payment for breach of contract in Article 114 of Contract Law can be expressed as a definitized amount or a calculation method.It works with bifounction character(compensation function and press founction)in transaction.The payablility of agreed payment for breach of contract requires a valid agreement concerning the payment,as well as the corresponding breach of contract.Agreed payment stipulated for the form of defaults other than delay in performance,in principle,estimates the total amount of compensation for the total damage caused by the corresponding breach,which is the key to deal with the relationship between agreed payment and statutory liabilities for breach of contract.Agreed payment for breach of contract may be applied in parallel with the termination of contract and shall not follow the rules for the commencement of limitation for indefinite debts.The'actual loss'for the judicial modification for agreed payment for breach of contract in Article 28,Article 29 of Interpretation of the Supreme Peoples Court on Several Issues Concerning Application of the Contract Law of the Peoples Republic of China(2)shall be understood as compensable damage,including loss actually suffered and lost profit.The judicial increase of agreed payment for breach of contract,which runs as a mechanism of intervention with judicial discretion,is different from the approach of'agreed payment plus damages compensation'.