定金罚则研究

从定金罚则看,我国现行民事立法中的定金为违约定金,其担保债权实现的作用十分有限。不仅如此,比较定金罚则的安全价值与其所产生的低效率、不公平、损害自由等负价值,现行定金制度功不掩过。要解决这一问题,在《合同法》修订之前,应通过法律解释方法,引入经济胁迫概念,允许当事人撤销部分明显不公的定金合同;并运用目的性扩张方法,填补立法趣旨不适合型漏洞,亦即:将《合同法》第114条对违约金的规定扩张到定金上,允许法院等干预定金数额。当然,最根本的解决方法还是废除定金罚则,变违约定金为解约定金。

On the Punitive Rule about Earnest Money

From the view of punitive rule about earnest money, the earnest money in our civil legislation is designed for breaching a contract, so its role of warranting obligation is limited. Furthermore, contrasting its value of safety with the negative ones, such as inefficiency, inequity, and damaging-freedom etc, we can say that the system of earnest money in practice is somewhat harmful in some aspects. Before amending contract law, we can take a temporary measure to solve this problem. That is, allow opposite party to rescind the obviously unfair contract of earnest money by using the method of interpreting statute and quoting the concept of economic duress, and allow people's court to expand the validity of the Article 114 which is about fine for breaching contract to earnest money. Of course, the fundamental method of solving the problem is to abolish punitive rule about earnest money and to replace earnest money for breaching a contract with the one for canceling a contract.