On The Relationship Between Penalty And Autonomy

The penalty is an ancient legal system in the contract law, obtained the extremely widespread utilization in the various countries contract method practice,《Contract Law of The People's Republic of China》114th replied to each point in turn the penalty to make the stipulation. Although the penalty concept is not certainly strange, but to the penalty essence, the penalty and the meaning autonomous relations, the penalty legal adjustment as well as the penalty breaks a contract the responsibility relations with other, and the practice still had the fuzzy understanding in the theory. This article is for the purpose of through to the penalty and the meaning autonomous relations theory analysis, justly to justly passes through the article take the penalty meaning autonomous attribute -freedom of contract form to the penalty legal adjustment - freedom of contract essence as the master line throughout, cleans up the penalty the theory question, to establish a clear, conform institutional framework to the penalty essence penalty. The full text divides into four major parts:First part: through to the penalty basic question inspection, elaborated the penalty origin, the concept, the legal characteristic, the essence and the function. This article believed that, the penalty essentially is under the litigant meaning autonomous principle freedom of contract, and manifests the penalty in the freedom of contract foundation to have the compensation and the punitive two kinds of attributes. Therefore in recognized when penalty first must follow litigant's meaning autonomously. About the penalty function aspect, besides elaborated the penalty civil liability function and the guarantee function, but also elaborated the penalty prevention function, namely through causes breaking a contract to undertake the legal liability, the education breaks a contract the person, the prevention breaks a contract the behavior.Second part: elaboration penalty and meaning autonomous relations question, this article thought the meaning autonomous is a premise which the penalty produces, namely the penalty is between litigant's one kind of agreement at first, is the meaning autonomous product, this is the penalty essence. The penalty is one meaning autonomous, therefore the penalty attribute also is the meaning autonomous category, namely the penalty compensation and punitive is the litigant meaning autonomous decided. Certainly, under the meaning autonomous principle the penalty should receive the certain limit, because litigant in agreement penalty time only can manifest in the freedom of contract form the justice.Third part: elaborated under the meaning autonomous principle the penalty legal adjustment, carries on the legal adjustment to the penalty the goal is pursues the freedom of contract the essence to be just. This article from the penalty law adjustment value, the legal adjustment economic analysis and the legal principle theory of law foundation, had pointed out should adopt the jurisdiction limited intervention principle, the compensation principle to the penalty adjustment.Fourth part: elaborated in the penalty meaning autonomous form justice and the substantive just foundation in front, the discussion penalty responsibility breaks a contract the responsibility relations with other, specially the penalty responsibility breaks a contract with other when the responsibility coexists, how processes the penalty responsibility with other to break a contract the responsibility to compete gathers the question. Mainly includes the penalty responsibility and the earnest money responsibility, actual fulfills the relations which, the damage compensate, the contract relieves. This also is the goal of this article discusses the penalty and the meaning autonomous relations.