On Limitation Of Penalty Clause

Penalty clause are common contract terms in transactions,but they are subject to special restrictions that are different from other contract terms,suggesting that the freedom of contract on penalty clause has special needs for fair control and is worth exploring;the limitation of penalty clause is in China's judicial practice The problem of "strict freedom of contract" and "standard anomaly" appears in it,so it is necessary to explore the measure of benefits in the limitation of penalty clause in order to explain the reasonable and operable penalty clause limitation under the current system of Chinese law.standard.This article takes the clarification of the nature of penalty clause as the starting point to explore the legal value of penalty clause and the justification of fair control;then,it explores the methods and scales of measuring benefits in liquidated liquidity restrictions in English and German law,and concludes the general principles.In the end,based on the previous two carding results as a theoretical background,the issue of interest measurement and its causes in the limitation of penalty clause in China's law are examined,and then a reasonable and clear standard for penalty clause limitation in the current system of Chinese law is constructed from an explanatory perspective.In addition,the article also discusses the limitation of penalty clause in special cases in China's judicial practice,such as the limitation of penalty clause in guarantee contracts and the limitation of penalty clause in the form of "buying and selling guarantee".This article is composed of three parts: introduction,body and conclusion.Among them,the body is divided into three parts.The first part discusses the nature of penalty clause and the need for fair control.First,clarify the contractual properties of the "pre-scheduled liability for breach of contract";second,from the perspective of "responsibility negotiation after breach of contract" and "statutory liability for breach of contract",to define the functional value of "scheduled liability for breach of contract",That is,the system value of penalty clause is clarified.The conclusion is that "the scheduled liability for breach of contract can fully implement the parties' performance guarantee and the meaning of damages." Third,the comparison is made between "responsibility negotiation after breach of contract" and "legal liability for breach of contract".From the perspective,to clarify the need for fair control on penalty clause,the conclusion is that the difference in content between "predetermined breach of liability" and "statutory breach of liability" will cause "content review" of public order and good customs principles due to the question of "equilibrium of payments",The difference in the clarification of the liability in advance between "predetermined liability for breach of contract" and "responsibility negotiation after breach of contract" will lead to the "exercise review" of the principle of good faith due to the increase in the opportunistic behavior of creditors.The second part explores the measurement of benefits in penalty clause restrictions.First,analyze the methods and scales of interest measurement under the British law model,consider how it takes into account the institutional purpose of penalty clause,and guarantee freedom of contract;second,analyze the methods and scales of interest measurement under the German law model,and consider How does it take into account the system purpose of penalty clause and guarantee contract freedom in the method of benefit measurement? Third,the general principles of benefit measurement are summarized based on the experience of the two law models.The conclusion is that the method of benefit measurement should take into account the parties' performance guarantees and The meaning of damage compensation means that the measure of interest will appear as a "type emphasis" due to the intervention of the legal order.If the consumer is a promisor of penalty clause,the legal order restricts the creditor's damage to the usual for the purpose of consumer protection.In order to limit the penalty clause system's purpose and protect the actual contractualfreedom;if the merchant is the penalty clause promisor,the legal order believes that the merchant is the best determiner of their own interests without special fair control,and the creditor's damage determination should be sufficient Consider commercial legitimacy to protect contract freedom for the purpose of guaranteeing penalty clause.The third part discusses the interpretation of Chinese law on penalty clause.First,it analyzes the problems and causes of the current standards of interest measurement in Chinese law,and concludes that the method of measuring interest and the conservative attitude on the scale caused by the "conservative" and "regulatory" traditions of contract freedom in legal concepts-Benefit measures for consumer protection apply to limit liquidity for various types of promisors.Second,explain the construction of penalty clause restriction standards under the current system.The object is judicial discretionary rules,with clear definitions of "interest measurement concepts" and further refinement of "interest measurement methods," specifically related to the understanding of "reduction authority." Judgment of "decrease tendency",clear definition of the connotation and relationship of "measurement factors",type emphasis of "measures of interest",and case adjustment of "stringency of proof responsibility",etc.Third,preliminary analysis of the problem of penalty clause in special cases in judicial practice.The conclusion is that with regard to penalty clause liquidity limits in guaranteed relationships,the interests and fairness of the three parties' relationship should be measured and clarified.The "sales-type guarantee" of penalty clause should measure the value change attribute of real estate as a default payment and the contract strengthening mechanism that the parties want to adopt,and then carefully consider the fair control interpretation structure of penalty clause.