违约金调整的规则体系——以《合同编通则解释》第65条为切入点

The System of Rules on the Adjustment of Liquidated Damages——Taking Article 65 of the Interpretation of the General Provisions of the Contract Law in the Civil Code as the Starting Point

违约金调整规则是违约责任中适用较为普遍的重要制度。《最高人民法院关于适用〈中华人民共和国民法典〉合同编通则若干问题的解释》第65条专门规定了违约金的司法酌减规则,既保持了以往法律适用规则的连续性,又新增、细化了合同主体、交易类型等酌定因素,明确了恶意违约情形下一般不予调整违约金等规则。有关违约金司法酌增的问题则需要依据《民法典》第585条的规定,按照逆向思维的逻辑参照适用该司法解释第65条的规定,同时应遵循填平原则和意思自治原则,厘清违约金与违约损害赔偿之间的关系。在此基础上,也有必要协调不同违约形态下违约金调整规则与继续履行等违约责任承担方式之间的适用关系。

Article 65 of the Interpretation by the Supreme People's Court of the General Provisions of the Contract Law in the Civil Code(hereinafter referred to as“the Interpretation”)specifically provides for the judicial discretionary rules on the reduction of liquidated damages.Although the issue of judicial augmentation of liquidated damages is not stipulated in the Interpretation,Article 65 of the Interpretation should be applied by analogy in accordance with Article 585 of the Civil Code and the logic of reverse thinking in dealing with related cases.Meanwhile,courts should properly handle the relationship between judicial augmentation of liquidated damages and damages for breach of contract in accordance with the requirements of the“principle of compensation”and the“principle of autonomy of will”,so as to achieve fair and reasonable remedies for the non-breaching party.When dealing with cases involving judicial reduction of liquidated damages,the relationship between different discretionary rules for adjusting liquidated damages under different forms of breach of contract and the difference between liquidated damages and specific performance should also be considered.As far as the applicable relationship between liquidated damages and continued performance is concerned,it should be analyzed concretely by distinguishing the different purposes of the establishment of liquidated damages clauses.If the liquidated damages clauses are set for breach of contract resulting from delay in performance,the liquidated damages should be limited only to the liability for compensation for the loss arising from the delay in the performance of contract.If the liquidated damage clauses are set for non-performance or fundamental breach of the contract,the non-defaulting party has the right to claim liquidated damages as well as the right to claim specific performance when such performance is possible,and the liquidated damages should be limited to the liability for compensation for the loss arising from the delay in performance.If there is no special agreement between the parties,the non-breaching party may claim liquidated damages and specific performance from the breaching party based on the same default of the contract.If a specific performance cannot recoup all the loss,the non-breaching party may claim liquidated damages as compensation for the loss.The non-breaching party may claim liquidated damages and specific performance from the breaching party based on different acts of breach of contract,but the total amount should not exceed the benefit that the non-breaching party would have obtained if the contract were normally performed and it should also be subject to the limitation of the foreseeability rule.As for the case of impossibility of performance,it does not mean the direct application of the liability for liquidated damages,but the circumstances of the case should be taken into consideration accordingly.