违约金性质探析

发布时间：2018-12-11 01:26

【摘要】：违约金制度是我国民事合同领域的重要制度之一。伴随着我国经济的飞速发展和市场体系的迅速完善,违约金制度和民商事合同制度一道被广泛运用。然而与此不相称的是,以违约金性质为中心焦点的关于违约金制度的相关争论也长久存在,这使得合同实践中的产生诸多分歧和问题。主要集中在对于我国违约金制度中违约金性质的不明晰,两种性质违约金之间是否有主次关系,惩罚性违约金在我国是否存在、地位如何、怎样运用调整等方面。包括《合同法解释》在内的我国违约金制度立法没有能根本上解决前述问题。有鉴于此,本文拟从违约金性质角度对我国违约金制度予以研究,为违约金制度相关缺陷的弥补提出对策,以期对于市场经济体系的健康运转有所裨益。第一章开篇即引入了违约金及两种性质违约金的概念,接着分析了违约金性质的发展沿革,进而对违约金发展现状即当前我国关于违约金性质的各家观点进行了分析和评论,并在此基础上得出了本文对于违约金性质的观点——修正的目的解释说：即违约金性质兼具补偿性和惩罚性,不存在主次之分；在具体确定某一合同中的违约金性质时,应当遵从合同双方当事人订约时的自由合意,即通过分析当事人订立违约金条款之目的来判断违约金的具体性质,而非由立法机关事前决定或者由由司法机关或仲裁机关的事后确定。第二章是对于本文提出的“修正的目的解释说”进行论证,在此部分运用了正反对比论证的方法,先针对当前否认惩罚性违约金的观点进行驳斥,指出补偿性违约金的不足和局限；然后指出违约金的特征自身体现出惩罚性、违约金制度功能的实现需要有惩罚性违约金,即从正面论述惩罚性违约金存在的必要性和重要作用。第三章是问题提出和解决建议。首先对英美、大陆两大法系代表国家的违约金制度进行研究,在此基础上,分析指摘出我国现行违约金制度存在的问题,包括意图兼收两大法系立法经验而导致的立法矛盾,对于两种不同性质的违约金调整标准予以“一刀切”式的规定引发的不合理,忽视当事人意思自治所带来的不公平。进而针对这些问题提出相应的解决建议,包括通过立法明文规定两种性质的违约金并引导当事人自由明文约定,区别规定两种性质违约金的调整数额,区别两种违约金适用的归责原则以达到公平。本文的观点在不少地方与前辈名家的观点有不同之处,笔者无意于标新立异,更不奢求本文观点能够推动立法,仅求能够在违约金性质问题上引起一些思考,为方家提供一些素材,给我国违约金制度的完善奉献绵薄。
[Abstract]:The system of liquidated damages is one of the important systems in the field of civil contracts in China. With the rapid development of our economy and the rapid improvement of the market system, the system of liquidated damages and civil and commercial contracts has been widely used. However, the controversy about the system of liquidated damages, which is centered on the nature of liquidated damages, also exists for a long time, which makes many differences and problems arise in the practice of contracts. It mainly focuses on the unclear nature of liquidated damages in the system of liquidated damages in China, whether there is a primary and secondary relationship between the two kinds of liquidated damages, whether punitive liquidated damages exist in our country, how to use the adjustment and so on. The legislation of penalty for breach of contract, including the interpretation of contract Law, has not fundamentally solved the above problems. In view of this, this paper intends to study the system of liquidated damages from the point of view of the nature of liquidated damages, and put forward some countermeasures to remedy the defects in the system of liquidated damages, in order to benefit the healthy operation of the market economy system. The first chapter introduces the concept of liquidated damages and two kinds of liquidated damages, then analyzes the evolution of the nature of liquidated damages, and then analyzes and comments on the current situation of the development of liquidated damages, that is, the various viewpoints on the nature of liquidated damages in our country. On the basis of this, the author points out that the purpose of the amendment is that the nature of the liquidated damages is both compensatory and punitive, and there is no difference between the principal and the secondary; In determining the nature of the liquidated damages in a certain contract, the free agreement of the parties to the contract shall be followed, that is, the specific nature of the liquidated damages shall be judged by analyzing the purpose of the parties' conclusion of the liquidated damages, It is not determined by the legislature or by the judiciary or arbitration. The second chapter is about the argumentation of "explanation of the purpose of revision" proposed in this paper. In this part, the author uses the method of positive and negative contrast to refute the view of denying punitive penalty first. The deficiency and limitation of compensatory liquidated damages are pointed out. Then it points out that the characteristics of liquidated damages itself reflect the punitive penalty, and the realization of the function of the system of liquidated damages requires punitive liquidated damages, that is, it is necessary and important to discuss the existence of punitive liquidated damages from the positive side. The third chapter is the question puts forward and the solution proposal. First of all, the paper studies the system of penalty for breach of contract in the two major legal systems of the United States and the mainland, and on this basis, analyzes and criticizes the problems existing in the current system of liquidated damages in China, including the legislative contradictions caused by the intention to incorporate the legislative experience of the two major legal systems. The adjustment standard of two different nature of liquidated damages is unreasonable caused by "one-size-fits-all" regulation, and the unfairness brought about by party autonomy is ignored. And then put forward the corresponding solutions to these problems, including the adoption of legislation to explicitly stipulate the two nature of the liquidated damages and guide the parties freely express agreement, the difference between the two nature of the amount of liquidated damages adjustment, In order to achieve fairness, the principle of imputation applied to the two kinds of liquidated damages is distinguished. The viewpoint of this paper is different from that of the predecessors in many places. The author has no intention of innovating, nor does he expect that this viewpoint can promote legislation, but only to arouse some thoughts on the nature of liquidated damages. To provide some materials for the Fangjia, to the perfection of the penalty system of our dedication.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6

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