违约金调整的法哲学审思

Philosophical Thinking on the Adjustment of Liquidated Damages

违约金调整问题虽然已有规范研究和实证研究的基础,但不能就规则讨论规则,还应从法哲学范畴予以审视和思考。首先,违约金调整是基于契约双方当事人的意思自治,在此基础上法院认为当事人拟定的违约金无法实现现实的正义,因此可采释明等方式宽泛地解读当事人依申请启动,实现矫正正义。其次,违约金调整制度作为市场经济的重要制度,一方面需要将公平置于效率之前,不能为了实现契约执行效率而忽视当事人利益;另一方面需要在秩序的基础上实现公平,应当在规范考量因素标准的基础上尽量实现同案同判。最后,要实现同案同判,应在经验理论的指导下,收集裁判文书中法官经验智慧的要点,构建模型以使实务实践的标准具有科学性、逻辑性和可行性。

Although there is a basis for normative research and empirical research on the issues regarding the adjustment of liquidated damages, we also can’t discuss rules only by means of rules. The issues should be examined and considered from the perspective of legal philosophy. Firstly,the adjustment of liquidated damages is based on the autonomy of the parties to the contract.On this basis,if the court believes that the liquidated damages proposed by the parties cannot achieve realistic justice,they can use the interpretation right and other methods to broadly interpret the parties’ initiation of the application to achieve corrective justice.Secondly,as an important system of market-oriented economy, the adjustment of liquidated damages system needs to put fairness before efficiency on the one hand, and cannot ignore the interests of the parties in order to achieve the efficiency of contract execution. On the other hand,we need to achieve fairness on the basis of order,and we should try our best to realize the same case for the same judgment on the basis of standard consideration factors. Finally, to achieve the goal of the same case for the same judgment,under the guidance of empirical theory,collecting the key points of the judge’s experience and wisdom in the judgment document,and constructing a model to carry out forecasting research is a feasible path for the future judicial practice of liquidated damages adjustment.