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工程项目中承包人违约致使合同解除后应扣除金额的确定容易引起纠纷,依据2013版清单规范可将其分为损害赔偿和违约金。首先,依据相关法律及文件识别出四类致使合同解除的承包人违约事实并对其进行具体解析。其次,通过文献分析将损害赔偿分为实际发生的和潜在发生的损害赔偿,将其进一步细分并分别明确了各项费用的确定方法或依据。最后,依据相关文献将违约金界定为惩罚性违约金,分别分析了合同中有约定和合同中未约定两种情况:得出合同约定过高时的调低原则并论证了合同约定过低时不应调高;对于合同未约定违约金的情况应遵循“有约定时从约定,无约定时从法定”的原则。
Project contractors in the contract resulting in the termination of the contract should be deducted the amount of the determination of easily lead to disputes, according to the 2013 version of the specification can be divided into damages and liquidated damages. First of all, based on the relevant laws and documents, four types of contractual defaults causing the contract to be dissolved are identified and analyzed in detail. Secondly, through the literature analysis, the damages are divided into the actual and potential damages, which are further subdivided and the methods or basis for the determination of the expenses are clarified respectively. Finally, according to the relevant documents, the liquidated damages are defined as punitive liquidated damages, which are respectively analyzed in the contract and the contract are not agreed in two cases: the contract is too low when the agreement reached and argued that the contract is too low Should not be raised; the contract did not stipulate the liquidated damages should follow the “contract from time to time agreed, no appointment from the statutory” principle.