摘要
我国民法上违约金规则系糅合了法国民法和德国民法关于违约金规则的立法范式,亦即对违约金的定义采德国模式,而违约金司法酌减规则的规制对象则与法国法相同。但经过司法实践的演化,违约金司法酌减规则业已异化为以补偿债权人为内核的数字型酌减模式,由此引致民法规范体系的不融贯、规则的适用无法实现其规范意涵的局面,严重影响了以交换正义为目的的合同法律制度价值的实现。因此,应当重新审视违约金作为合意产物的本质,让违约金的规制模式回归于合同效力控制规则的道路上,并根据合意特性的不同,从合意度和均衡度两个方面检视违约金的效力。值此情形,并不会因违约金的给付而给当事人带来风险。由此,注重违约金规制模式的本土化改造,以新的立法实践和司法实践回应当下的时代课题,方能推动具有鲜明中国特色、实践特色的民法理论体系的发展。
The rule of the Agreed Payment for Breach of Contract in the civil law of our country combines the legislative model of the rule of the Agreed Payment for Breach of Contract in French civil law and German civil law,that is,the definition of the Agreed Payment for Breach of Contract adopts the German model,and the object of judicial discretionary reduction of the Agreed Payment for Breach of Contract is the same as that of French law.However,in the judicial practice of our country,it is alienated into a digital model of the Agreed Payment for Breach of Contract reduction with damages law as the core.This not only leads to the inconsistency of the civil law norm system,but also causes the application of the rule to fail to realize its normative meaning,which seriously affects the realization of the value of the contract legal system for the purpose of exchange justice.Therefore,the essence of the Agreed Payment for Breach of Contract as an agreeable product should be re-examined,the regulation mode of the Agreed Payment for Breach of Contract should be returned to the road of contract effectiveness control rules,and according to the different characteristics of agreement,the effectiveness of the Agreed Payment for Breach of Contract should be examined from two aspects:the degree of agreement and the degree of equilibrium.Under such circumstances,there will be no risk to the party concerned as a result of the payment of the Agreed Payment for Breach of Contract.Pay attention to the localization of the theory,so that we can respond to the current issues of the times with new legislative practice and judicial practice.
出处
《南大法学》
CSSCI
2023年第1期75-94,共20页
NanJing University Law Journal
关键词
《民法典》
违约金
司法酌减规则
合意拘束力
合同效力控制规则
Civil Code
Agreed Payment for Breach of Contract
Judicial Discretion
Binding Force of Agreement
Rules for Controlling the Effectiveness of Contracts
