浅析违约金调整规则的司法适用

Analysis on the Judicial Application of Liquidated Damages Adjustment Rules

摘要: 市场经济高度发达的今天，合同成为商事交易基本法律形式，作为不可或缺部分，违约金条款既能预防违约，也是违约发生后对守约方损失的补偿手段。但约定数额若与实际不符，不仅违背合同正义，也影响市场交易稳定性和效率。故违约金的合理调整彰显重要性。我国《民法典》第585条，对违约金调整作出规定，明确当事人可向法院申请调整违约金数额。但司法实务中并未对“造成的损失”的“损失”形成统一理解，且违约金调整请求权的法律属性不明确。故本文对违约金调整规则的正当性分析，剖析违约金调整的司法适用实践现状，揭示司法适用中问题，并提出建议，期望为我国违约金调整规则的司法适用提供参考，促进完善违约金调整规则。

Abstract: Nowadays, the market economy is highly developed, and contract has become the basic legal form of commercial transactions. As an indispensable part, liquidated damages clause can not only prevent breach of contract, but also compensate the non-breaching party’s loss after the breach occurs. However, if the agreed amount is inconsistent with the reality, it will not only violate the justice of the contract, but also affect the stability and efficiency of the market transaction. Therefore, the reasonable adjustment of liquidated damages is important. Article 585 of China’s Civil Code provides for the adjustment of liquidated damages, clarifying that the parties may apply to the court to adjust the amount of liquidated damages. However, the judicial practice has not formed a unified understanding of the “loss” of the “loss caused”, and the legal attribute of the right of liquidated damages adjustment is not clear. Therefore, this paper analyzes the legitimacy of liquidated damages adjustment rules, analyzes the current situation of judicial application of liquidated damages adjustment, reveals problems in judicial application, and puts forward suggestions, hoping to provide references for the judicial application of liquidated damages adjustment rules in our country and promote the improvement of liquidated damages adjustment rules.