《民法典》违约金规范的体系性发展

《:民法典》违约金制度的规范更新,既包括违约金规范本身的修订,也包括其与相关规范的体系互动。《民法典》第585条第2款后段表述的修订,还原了违约金司法酌减系于司法评价的技术特征,凸显了酌减规则的裁量特点,有助于发掘违约金的履约担保功能,兼容商事交易的效率要求。《民法典》第588条的反对解释决定了约定违约金原则上属于损害赔偿总额的预定,不足填补时债权人可另主张司法增额。合同基础丧失规则与违约金司法调整规则构成竞合关系,合同解除与违约金责任的并行关系不限于违约解除场合。司法酌减与法律行为背俗无效规则存在体系分工,与显失公平撤销规则构成竞合关系;若非商事交易,事先排除酌减特约应属无效,但并非因违反强制规范而无效。

The Development of Agreed Payment for Breach of Contract in the Civil Code of PRC: From a Systematic Perspective

The agreed payment for breach of contract in the Civil Code of PRC is developed through the revision of its rules and its interplay with related rules in the whole system of the code. Through the revision of the latter part of Paragraph 2 of Article 585 in the Civil Code of PRC, its function to secure the performance of contract is developed so as to enhance the efficiency of commercial transactions, by clarifying and highlighting the technical feature of discretion, characteristic of judicial reduction based on evaluation. According to the negative interpretation of Article 588 in the Civil Code of PRC, the agreed payment is in principle the pre-estimated total of damages, and the creditor can only resort to the rule of judicial increase if it fails to cover the damages. In its relation with other relief mechanism in contract law, in terms of the judicial adjustment it is cooperative and competitive with the rules of loss of or significant change of contract basis, and it is of the same relation with the rules of rescission of contract(but not limited to the cases of rescission on the ground of breach of contract). In its interplay with the General Provisions of Civil Code, judicial reduction of the agreed payment is of a different role in the system from that of the rule of voidable transactions that violate public order and good morals(Article 153 Paragraph 2) but is cooperative and competitive with the rule of cancellation of contract due to obvious unfairness(Article 151). The pre-arranged exclusion of judicial reduction should be deemed invalid in principle, if it is not for commercial transactions, but such invalidation is not caused by the violation of compulsory rule.