试论违约金的法律概念和特征

On the Legal Concepts and Characteristics of Penal Bond

现代的违约金制度源自罗马法,至今已逾千年,但在理论上仍存在很大分歧,尤其对于违约金的性质和适用原则至今仍不乏争论,这集中表现在两大法系对惩罚性违约金的态度上。这使违约金概念的法律界定问题成了解决理论分歧的基础,也是司法统一的关键。虽然各国由于在认识和理解上有所差异,但其反映的违约金法律特征基本上还是一致的。

Modern penal bond system may trace to ancient Roman Law which has existed more than one thousand years.But,there are still great divergence of view about it in theory,particularly the nature of default fine and its application principle.The divergence of views focuses the attitudes to the penal bond between the two genealogy of law that make the law demarcation of penal bond to be the basis of setting theoretic divergence,as well as judicial unity.Though there are differences in the way of realizing and understanding among the countries in the world,the main characteristics they described are consistent.