违约金调减的证明责任问题

在对《民法典》第585条第2款后段的解读中,应将"违约金过分高于损失"理解为违约金调减请求的权利成立要件,将法官自由裁量权的行使理解为权利成立的法律后果。这一区分对应了违约金的双重功能,可为违约金调减请求提供更清晰的审理思路。成立要件的审理对应违约金的补偿性功能,适用诉讼法理;调减衡量因素的审理对应违约金的履约压力功能,部分适用非讼法理。根据现行法,"违约金过分高于损失"的证明责任应由违约方承担,且不能转移。违约方的证明困难属于法官自由心证的范畴,在具体诉讼中可以通过事案解明义务缓解,但不改变证明责任、证明标准以及由此决定的本证与反证的区分。违约金调减衡量因素的调查不存在证明责任问题,应围绕法官自由裁量权的行使,在诉讼法理与非讼法理的交错适用中展开。

Issue of Burden of Proving Reduction of Liquidated Damages

In interpretation of the latter part of article 585,paragraph 2 of the Chinese Civil Code,"the liquidated damages are excessively higher than the loss"should be understood as the constitutive elements of the right to request for the reduction of liquidated damages,and the exercise of the judge’s discretion be understood as its consequence.This distinction corresponds to the dual function of liquidated damages,and provide a clearer trial idea for the request for reduction of liquidated damages.Specifically,the trial of the constitutive elements corresponds to the compensatory function of liquidated damages,for which contentious proceedings are applicable;The trial of discretionary factors corresponds to the pressure function of liquidated damages,for which non-contentious proceedings are partly applicable.According to the current law,the burden of proving that"the liquidated damages are excessively higher than the losses"should be borne by the defaulting party and cannot be transferred.The difficulty of proof is a subject of the judge’s free evaluation of evidence.In specific proceedings,it can be alleviated through the parties’obligation to clarify the case,but the burden of proof,the standard of proof and the related distinction between assertive evidence and counter evidence will be never changed.The investigation of the Discretionary factors of liquidated damages reduction has nothing to do with the burden of proof.It should focus on the exercise of judges’discretion and be promoted though the alternative application of contentious proceedings and non-contentious proceedings.