中英违约金条款之比较研究
Two Different Approaches with the Same Goal:A Comparative Study of Penalty Clause Between China and England
侯利阳
【摘要】The first part of this memo will define the concept of penalty clause used in this memo. The following two parts will introduce the different rules governing penalty clause in the author’s home jurisdiction, China, and in England. In the last part the author will describe the difference and similarity between China and England, followed by the relevant underlying reasons behind in order to probe the interaction between the two different jurisdictions.
【关键词】Penalty Clause, Liquidated Damages 违约金
【全文】
Two Different Approaches with the Same Goal:
A Comparative Study of Penalty Clause
Between China and England
Liyang Hou*
I. Introduction
The study of penalty clauses is a rewarding area of comparative research. The most cursory of examinations reveals the diametrically opposed theoretical positions of contemporary legal orthodoxy in civil law countries and common law countries. A search for the rationale behind this theoretical divergence gives insight not only into the broader conceptual and substantive differences between the two jurisdictions, but, more importantly, their many similarities as well.
Before actually talking about the definition of penalty clause, another notion to which the concept of penalty clause is closely related and which should be mentioned in the first place is liquidated damages. Liquidated damages, also known as stipulated or pre-estimated damages, constitute compensation agreed upon by the parties entering into a contract, to be paid by a party who breaches the contract to a non-breaching party. Almost all jurisdictions prescribe that such liquidated damages must be certain with regard to the actual damage of breach of contract. In most cases it refers to a set sum of money or a method of calculation of compensation in light of the degree of breach. The concept of penalty clause is determined by Liquidated damages. It is termed as a penalty clause under such situations where the amount of liquidated damages prescribed disproportionately exceeds the loss resulting from the breach.
