刍议违约金过高的司法调整

Discussion on the Judicial Adjustment of Excessive Breach of Contract

违约金条款"促使当事各方诚信履行合同义务,合同约定的违约金数额问题往往又加剧合同履行之矛盾,司法调整顺势而生。虽然合同违约金数额之约定符合合同自由和意思自治之精神,但是完全依靠市场自发调节绝对的契约自由显然不利于交易秩序之稳定,法院在考虑当事人的违约金数额调整的诉求时,应充分考虑合同履行对于守约一方的价值意义,合同违约方的主观恶性,违约程度,交易过程当中的诚实守信原则等因素,适当发挥法官的释名权,结合案件的诉讼时效以及当事人的举证状况,居公裁决。

The“penalty clause”encourages the parties to perform their contractual obligations in good faith,and the amount of the liquidated damages stipulated in the contract often aggravates the contradiction of the performance of the contract.Although the agreement of the amount of the contract breaches is in accordance with the spirit of freedom of contract and autonomy of the party,it is obviously not conducive to the stability of the transaction order to regulate the absolute freedom of contract by relying on the market spontaneously.The court should fully consider the value of the contract to the abiding party for the demand of the adjustment of the amount of the party's liquidated gold.The subjective malignancy of the contract breach,the degree of contract breach,the principle of honesty and trustworthiness in the course of the transaction,and so on,give full play to the judge's right of interpretation,combine the prescription of the case and the case of the litigants to prove the status of the evidence.This article mainly discusses three aspects of the problems:first,our country is too high on the penalty of breach of contract;second the relevant provisions of adjustment,followed by the necessity of liquidated damages adjustment;and last the related issues of the adjustment of liquidated damages.