Concerning The Improvement Of The System Of Penalty Due To Breach Of Contract

In contract law, the penalty due to breach of contract system is a very important system, its plays an irreplaceable role to perform the contract. The party in the penalty due to breach of contract agreement, in accordance with common sense, real intention, and "black and white", the parties should abide by. However, in practice, a breach of contract is more and more serious, default lawsuit also on the rise. Investigate its reason, is the integrity of consciousness is not high, or loose penalty due to breach of contract nature of regulation in China?To crack the problem, need to interpret the nature of the breach of contract in our country. According to "contract law of the People’s Republic of China (hereinafter referred to as the" contract law "article 114 law, the penalty due to breach of contract in our country property should be characterised as" both compensation and punishment, give priority to with compensation, punishment is complementary". There is no doubt that at the beginning of the legislation, the system in the adjustment of the liability for breach of contract, stability control the market order, protect the legal rights and interests of the observant party and so on various aspects play an important role, but with the development of economy and the construction of the market order, and the system appears more and more trouble. If the default party exist subjective offence, according to the default loss adjusting penalty due to breach of contract, more to protect the interests of the party in breach, observant party became weak, to prevent the breach of contract default, cannot be sanctions default function; Default caused no damage, should compensate for penalty due to breach of contract and without reference to any standard compensation law and so on. To this, the theory, practice the referee is multifarious, affects both the unification of the law applicable, and harm the judicial authority.The author of this paper is to intermediate court in recent 10 years, engaged in a civil trial, of various types of default case a bit too. With his trial experience, the author believes that China’s current implementation of the system of penalty due to breach of contract, did not play the liquidated damages punitive effect, the penalty due to breach of contract is to urge the parties to a contract integrity performance, ensuring the integrity of the parties’ legitimate rights and interests, disseminating social equity and justice, promote legal value function aspects, such as lacking, need to be perfect, from the system from the concept to be updated.In argument penalty due to breach of contract on the basis of the existence predicament in practice, the author thinks that, to perfect the system of penalty due to breach of contract in our country, the nature of the breach of contract should be in Germany law system, strengthen the liquidated damages punitive color, without rejection for compensation. No matter from theory and practice, mainly on punitive auxiliary penalty due to breach of contract and compensation system, can maximum limit given default default the deterrent threat of sanctions, conducive to the deterrent to default, achieve the guarantee effectiveness of default, ensure fully perform the contract; Beneficial to the construction of social credit system and market order management; Is beneficial to realize the autonomy of the parties, carry out the above by the legal principle.In other country and domestic law, on the basis of existing research results, the author proposes ways to improve the system of penalty due to breach of contract in our country is:the repulsion penalty due to breach of contract damages at the same time, must strengthen the liquidated damages punitive mechanism, give full play to the effect of penalty due to breach of contract should be. Specific measures as follows:first, as liquidated damages, the real intention of the parties to a contract to enter into a liquidated damages clause, as well as the severity of the fault of default, the organic combination of the fault and punitive penalty due to breach of contract, such as subjective fault, the parties shall apply punitive penalty due to breach of contract, namely the default loss, default of people on the bearing of liquidated damages and default loss at the same time. As liquidated damages too high, can from the principle of fairness of liquidated damages shall be corresponding rules and regulations. Second, in order to avoid the interests of the major imbalances, while protecting the state, the collective and the legitimate rights and interests of a third person, the client application, or the judge may also be in accordance with the authority of the legitimacy of the liquidated damages clause, revocable for review. Third, the functions of penalty due to breach of contract damages, not only is punishing sanctions, so the occurrence of breach of contract should not be on the premise of causing the damage., of course, when that defaults, appropriate to consider the amount of liquidated damages regulation, to prevent the emergence of "high penalty due to breach of contract", concrete ideas for reference deposit penalty discretionary defaults or folk lending rate constraints. Fourth, respect towards the nature of liquidated damages agreed by the parties, fully embody the principle of party autonomy.