意定排除违约金酌减规则之合同条款效力研究

Study on the Effectiveness of Contract Terms under the Rule of Discretionary Exclusion of Mitigation of Liquidated Penalties

通过对违约金功能以及违约金酌减规则规范意旨的分析,可得违约金酌减规则属于强制性规范的结论,进而可得事前排除酌减规则的合同内容无效的结论。所谓例外情形下有效的说法并不准确,其实质是该例外情形本就无需适用酌减规则,也即约定违约金的数额并不过高。所谓事前排除,从规范角度看,并非当事人意定排除了酌减规则的适用,而是对限制适用酌减规则的强调,裁判者应当考虑到这一点。当前主流观点以区分民商事合同来判断违约金是否应当适用酌减规则,然而该说法缺陷非常明显,民商事合同的区分标准未达成共识,且部分民事合同也存在限制适用酌减规则的可能,因此需要进一步完善。

Through the analysis of the function of liquidated damages and the normative intent of the rules for mitigation of liquidated penalties,it can be concluded that the rules for mitigation of liqui-dated penalties belong to mandatory norms,and thus the conclusion that the contract content ex-cluding the rules for mitigation of liquidated penalties in advance is invalid can be drawn.The statement that it is effective under exceptional circumstances is not accurate.Its essence is that the exceptional situation does not require the application of the discretionary rule,that is,the amount of agreed liquidated damages is not too high.The so-called prior exclusion,from a norma-tive perspective,is not the intentional exclusion of the application of the discretionary rule by the parties,but an emphasis on limiting the application of the discretionary rule,which the judge should take into account.The current mainstream view is to distinguish between civil and com-mercial contracts to determine whether the penalty should be subject to the discretionary rule.However,the shortcomings of this statement are very obvious.There is no consensus on the dis-tinguishing standards for civil and commercial contracts,and some civil contracts may also have limitations on the application of the discretionary rule.Therefore,further improvement is needed.