论违约金的性质及制度重构

关于违约金的性质有不同观点,文章认为违约金应为惩罚性,是当事人通过事先约定而确定的,在违约后生效的独立于履行行为和损害赔偿的一种惩罚性违约责任形式,并通过其法律特征的分析来进一步论证之。最后,在立法上进行了违约金制度的重构。

On the Nature of Penalty and Reconstructing of Penalty System

There are different views on the nature of penalty. This article first claims that penalty should be punitive. Penalty, coming into force after one party broke a contract, determined by all parties' agreement in advance, is a kind of punitive form of liability that is independent of fulfilling behavior and compensation for damage. Then this article proves the nature of penalty further through the analysis of its legal characteristic. Finally, this article reconstructs system of penalty legislatively.