逾期付款违约金制度研究
发布时间：2018-09-03 11:39
【摘要】：在司法实践中,合同纠纷涉及逾期付款违约金的案件审理存在混乱现象,有的对当事人主张的逾期付款违约金予以支持,有的予以驳回。在计算标准及起算时限上亦作法不一,我国现行的法律对此规定亦不明确。如何调整逾期付款违约金,虽然法律有原则性的规定,但仍赋予了法官非常大的自由裁量权。以上多种因素导致同案不同判现象的时有发生,影响了司法公信力及法律的统一性。对此,应在确定逾期付款违约金的定性、明确起算时限及规范计算标准上做进一步探索研究,以便在立法和司法上提出合理建议。全文一共分为五部分进行阐述逾期付款违约金制度。第一部分,重点介绍了逾期付款违约金的法学基础知识,介绍了其概念,种类以及不同时期国家的相关规定,以便大家对逾期付款违约金有个系统专业的认识;第二部分,主要介绍了世界各国对逾期付款违约金的相关立法规定;第三部分,重点介绍了在司法实践中,对逾期付款违约金适用的差异,以此来证明规范法律制度适用的重要性,杜绝同案不同判的矛盾现象再次发生。此外,也分析了对逾期付款违约金适用持不同态度者的各自的论据,以及如何解决违约金适用争议的问题;基于第三部分对司法适用的争议分析,第四部分,着重关注对逾期付款违约金的调整方面,包括调整的原则,要件和调整后制度的司法适用;第五部分,阐明了现有的逾期付款的违约金的法律规范的不足之处,以及对完善我逾期付款提出相应的立法建议。以上是这篇文章的基本内容,在写这篇文章时,以务实的态度,仅仅围绕逾期付款违约金制度而产生的焦点问题,通过对现有正在实施的有效的法律规定进行分析,通过对比借鉴国外逾期付款违约金制度,总结我国逾期付款违约金制度的不足,以期提出可行性的完善建议。
[Abstract]:In judicial practice, there is confusion in the trial of cases involving overdue payment of liquidated damages in contract disputes, some of which are supported by the parties concerned and some are rejected. There are different methods in calculating standard and starting time, and the current law of our country is not clear about this. How to adjust the penalty of overdue payment is a matter of principle, but it still gives the judge great discretion. The above factors lead to the phenomenon of different judgments in the same case, which affects the judicial credibility and the unity of the law. In order to put forward reasonable suggestions in legislation and judicature, we should make further exploration and study on determining the nature of overdue payment penalty, defining the starting time limit and standardizing the calculation standard. The full text is divided into five parts to elaborate the system of overdue payment liquidated damages. The first part focuses on the basic legal knowledge of overdue payment liquidated damages, introduces its concept, types and relevant provisions of different countries in different periods, so that everyone can have a systematic and professional understanding of overdue payment liquidated damages; the second part, The third part focuses on introducing the differences in the application of overdue payment liquidated damages in judicial practice, in order to prove the importance of standardizing the application of the legal system. Put an end to the contradiction of different judgments in the same case to occur again. In addition, it also analyzes the arguments of those who hold different attitudes to the application of overdue payment liquidated damages, and how to resolve the dispute on the application of liquidated damages; based on the dispute analysis of judicial application in the third part, the fourth part, Focusing on the adjustment of overdue payment liquidated damages, including the principles of adjustment, the elements and the judicial application of the adjusted system; part V, which clarifies the deficiencies of the existing legal norms on overdue payment of liquidated damages, And to perfect my overdue payment to put forward the corresponding legislative suggestions. The above is the basic content of this article. In writing this article, with a pragmatic attitude, it only revolves around the focus of the system of overdue payment liquidated damages, through an analysis of the existing effective legal provisions that are being implemented. By comparing the foreign overdue payment penalty system, this paper summarizes the deficiency of our country's overdue payment breach penalty system in order to put forward some feasible suggestions.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6
，
本文编号：2219872
[Abstract]:In judicial practice, there is confusion in the trial of cases involving overdue payment of liquidated damages in contract disputes, some of which are supported by the parties concerned and some are rejected. There are different methods in calculating standard and starting time, and the current law of our country is not clear about this. How to adjust the penalty of overdue payment is a matter of principle, but it still gives the judge great discretion. The above factors lead to the phenomenon of different judgments in the same case, which affects the judicial credibility and the unity of the law. In order to put forward reasonable suggestions in legislation and judicature, we should make further exploration and study on determining the nature of overdue payment penalty, defining the starting time limit and standardizing the calculation standard. The full text is divided into five parts to elaborate the system of overdue payment liquidated damages. The first part focuses on the basic legal knowledge of overdue payment liquidated damages, introduces its concept, types and relevant provisions of different countries in different periods, so that everyone can have a systematic and professional understanding of overdue payment liquidated damages; the second part, The third part focuses on introducing the differences in the application of overdue payment liquidated damages in judicial practice, in order to prove the importance of standardizing the application of the legal system. Put an end to the contradiction of different judgments in the same case to occur again. In addition, it also analyzes the arguments of those who hold different attitudes to the application of overdue payment liquidated damages, and how to resolve the dispute on the application of liquidated damages; based on the dispute analysis of judicial application in the third part, the fourth part, Focusing on the adjustment of overdue payment liquidated damages, including the principles of adjustment, the elements and the judicial application of the adjusted system; part V, which clarifies the deficiencies of the existing legal norms on overdue payment of liquidated damages, And to perfect my overdue payment to put forward the corresponding legislative suggestions. The above is the basic content of this article. In writing this article, with a pragmatic attitude, it only revolves around the focus of the system of overdue payment liquidated damages, through an analysis of the existing effective legal provisions that are being implemented. By comparing the foreign overdue payment penalty system, this paper summarizes the deficiency of our country's overdue payment breach penalty system in order to put forward some feasible suggestions.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.6
，
本文编号：2219872
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