違約金酌減規則論

On the Appropriate Reduction of Penalty

違約金酌減規則是應對違約金數額過高而產生的特殊規則，其實質是賦予法官對合同自由進行等價有償的干預。酌減規則是對懲罰性違約金數額與其所擔保的利益不等價而設計的制度，只適用於懲罰性違約金，而不應適用於賠償性違約金。違約金酌減以違約金約定有效成立、違約金請求權已經發生效力並繼續保持效力為構成前提。

The appropriate reduction of penalty follows special rules aiming at adjusting its amount when it's too high. The essence is to give the judges the power to intervene in the freedom of contract based on the equivalent exchange principles, for the appropriate reduction of rules are designed to deal with the unbalance between the amount of penalty and its guaranteed interests. Accordingly, they should only be applied to punitive damages instead of liquidate ones. The preliminary conditions of applying these rules are as follows: the agreement of the penalty should be made and valid, and the claim of the right has already been made and the claim continues to be effective and its amount is too high. Whether the amount of the penalty is too high should not base on actual losses of the creditor, instead, with all creditor's interests being included, it should be weighed in consideration of the specific situation and results of contractual breach, benefits of obligators and the further developing possibilities of contractual damages.