违约金担保功能的异化与回归——以对违约金类型的考察为中心

违约金在历史上仅作为债务履行的担保工具而存在。为促使债务人履行债务,当事人往往约定较高数额的违约金,以形成一种履行上的压力。此类违约金的目的在于担保履行,而非解决损害赔偿,是固有意义的违约金。同时,此类违约金也并非当然具有惩罚违约行为之目的。而惩罚性违约金的效力在于,违约方除须支付违约金外,尚须继续履行债务或者负担损害赔偿债务。赔偿性违约金本不属于违约金之范畴,原系当事人在订立合同时对损害赔偿总额之预定。后世法律为简化损害赔偿程序、平衡当事人利益,将违约金推定为损害赔偿总额预定,遂产生赔偿性违约金。我国合同法第114条以规范赔偿性违约金为主,但亦不完全否定惩罚性违约金,其主要问题在于,违约金固有的担保功能丧失殆尽,而赔偿性违约金之简化损害赔偿的功能也没能充分发挥。应对合同法第114条在重新解释的基础上进行必要的改造,以明确违约金的功能定位,并改进其法律效力。

Alienation and Return of the Guarantee Function of Liquidated Damages

In history, liquidated damages existed only as a guarantee tool for the fulfillment of obligation. The parties usually agree on a high amount of liquidated damages which form some pressure on the debtor to fulfill his obligation. This type of liquidated damages aims to guarantee fulfillment instead of settling compensation for damages, thus, is liquidated damages in its inherent meaning. Meanwhile, the purpose of such type of liquidated damages does not necessarily include the punishment of nonperformance. The function of punitive liquidated damages is to ensure that the default party not only pay liquidated damages, but also continue to fulfill his obligation or bear the debt of damages. Punitive liquidated damages aim to entitle the creditor to dual benefits and, therefore, shall be strictly restricted. Originally, compensatory liquidated damages are predetermination of damages when both parties are making a contract, hence do not fall into the scope of liquidated damages. In order to simplify the procedure of compensation for damages and balance the benefits of both parties, later laws presume liquidated damages as the predetermination of total amount of damages, hence the emergence of compensatory liquidated damages. Article 114 of Contract Law of People''s Republic of China primarily focuses on regulating compensatory liquidated damages, but does not totally negate punitive liquidated damages. The main problem with the provisions on liquidated damages in the Chinese Contract Law is that liquidated damages completely lose their inherent function of guarantee, while the simplified function of compensatory liquidated damages does not play a full role. In order to clarify the function and role of liquidated damages and enhance their legal effect, Article 114 of Contract Law shall be modified on the basis of reinterpretation.