以“主观过错”辨补偿性和惩罚性违约金

Distinguishing compensatory and punitive liquidated damages by “subjective fault”

违约金可分为补偿性和惩罚性两种,前者在于实现违约金的补偿功效,后者对应违约金的督促功效。违约金双重功能的发挥离不开对其性质的准确划分,但现行主流标准因自身缺陷在当事人无约定时难以对其进行精确界分,导致违约金目的与数额的链接中介缺失,个案公正也就无从谈起。基于此,提出借助主观恶性不同的过错违约和无过错违约间接区分补偿性和惩罚性违约金:过错违约中以惩罚性违约金为原则,补偿性违约金仅在当事人通过特定方式明示时才存在;无过错违约中则仅允许补偿性违约金存在。

Liquidated damages can be divided into compensatory and punitive damages. The former is aimed to realize the compensation effect of liquidated damages,while the latter corresponds with the supervision effect of liquidated damages. The exertion of dual function of liquidated damages is closely related with the accurate distinction of its nature. The existing mainstream standard is difficult to accurately define it due to its self defect when the parties have no appointment,which leads to the lack of link intermediary of the purpose and amount of liquidated damages,and individual justice is out of the question.Based on the above,it is proposed that compensatory and punitive liquidated damages can be divided indirectly by intentional and unintentional defaults with different subjective evil： punitive liquidated damages are the principle of intentional default,and compensatory liquidated damages only exist when the parties express themselves in a particular way; while in unintentional defaults,only compensatory liquidated damages are allowed.