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关于违约金的酌减幅度和标准,我国《合同法》第114条和《合同法司法解释二》第29条做了具体的制度安排和规定,但是对于违约金的类型划分并没做过多规定。从比较法的研究来看,根据赔偿性和惩罚性的功能划分,可以对违约金进行类型区别。通说认为我国法律规定的关于违约金的性质具有赔偿性质,并且法院在具体认定时以当事人的实际违约损失来进行判断,这与当事人预定的赔偿性违约金作为违约行为所造成的损害赔偿范围以减少承担实际损失证明责任的意思相违背,本文试通过对违约金种类及功能的分析,结合违约金酌减条款在司法实践中的运行状况,解读违约金酌减规则的应有之意,以及违约金酌减规则应该参考的主要因素,进而为违约金酌减提供合理的规则。
With regard to the discretionary reduction rate and standard of liquidated damages, China has made specific institutional arrangements and provisions in Article 114 of the Contract Law and Article 29 of the “Interpretation of Contract Law”, but it has not done too much for the type of liquidated damages Provisions. From the perspective of comparative law, according to the division of compensation and punitive functions, the types of liquidated damages can be distinguished. It is generally believed that the nature of the liquidated damages stipulated by the law of our country is of a compensatory nature and that the court, at the time of specific verification, makes judgments based on actual losses of the parties involved in the contract. This is consistent with the scope of the compensation for breach of contract damages In order to reduce the liability for the actual loss of the contrary, the paper tried to analyze the types and functions of liquidated damages, combined with the operation of the liquidated damages provisions in judicial practice, to interpret the appropriate meaning of the penalty deduction rules, As well as the main factors that should be referred to by the rules for the reduction of liquidated damages, so as to provide reasonable rules for the reduction of liquidated damages.