试论违约责任形式的确定

对如何确定违约责任的形式,在我国现行合同法律制度和学理研究中规定和研究的较为简略。但这一问题却在立法和司法实践中是极为重要的。在确定违约责任形式时,除了现有的规则和认识外,还应坚持合同自愿原则和当事人约定优先、法定为辅规则以及将违约定金罚则、违约情况下的合同解除纳入违约责任形式的范畴,以充实违约责任制度。

How to Determine the Form of Liabilities for Breach of Contract

How to define the form of liabilities for breach of contract, which is simply regulated or studied in our nation' s current contract law or doctrinal researches, is very unportant in legislation and judicial practice. When we determine the form of liabilities for breach of contract, besides current laws and understandings, we also have to abide by the principles of voluntariness, preference of contract parties' agreement and supplement of lawful regulations, and add penal clause of breach of contract damages , rescission of a contract with the breach of contract into the form of liabilities for breach of contract to enrich the system of liabilities for breach of contract.