论违约金制度-民商法学专业论文.docxVIP

2 2 the thousandth of a Yuan regards as at pre sent the penalty function the penalty nature the wrong understanding, and through to the educational world struggle on the penalty nature analysis, had to be the debtor responsibility property specific or the magnification embarks from the guarantee essenc e, refuted the penalty is guarantees the way the compromised viewpoint, proved it to belong to the civil liability form. Fourth part, penalty related function, including: Manifests the meaning autonomous principle; As a result of the penalty in advance det ermination characteristic, supervises the litigant to honor an agreement; Penalty penalty function and compensatory function. Fifth part, elaboration penalty and other violation relief way relations. Including the penalty and the compulsion fulfillment, with the damage compensate, with the earnest money, the relations which relieves with the contract and so on, and discussed the penalty emphatically the question which whether or not and uses with other violation relief form. Sixth part, to penalty suitabl e intervention. The penalty when is lower than the actual loss or is higher than the actual loss excessively, may carry on the adjustment, this reflected the legislator realizes to the penalty suitable intervention is necessary. “Because the penalty height quite standard is the loss which breaks a contract creates”, is lower than this standard time in the penalty, the litigant must request increases the volume, manifests principle which compensates completely; Is being higher than this standard time excessi vely, according to the litigant requested reduces, but requested reduces the volume the scope also to be supposed to refer to the violation degree, whether has the supplementary harm and so on. Key word: Penalty system civil liability nature functio n adjustment 1 1 目 录 引言 1 一、释论 1 1、违约金概念之界定 1 2、违约金的法律特征 1 3、违约金责任的成立 4 二、史论 4 1、罗马法 4 2、中国古代法 5 3、两大法系对违约金的不同