違約金調减的證明責任問題

Issue of Burden of Proving Reduction of Liquidated Damages

在對《民法典》第585條第2款後段的解讀中，應將“違約金過分高於損失”理解為違約金調减請求的權利成立要件，將法官自由裁量權的行使理解為權利成立的法律後果。這一區分對應了違約金的雙重功能，可為違約金調减請求提供更清晰的審理思路。成立要件的審理對應違約金的補償性功能，適用訴訟法理；調减衡量因素的審理對應違約金的履約壓力功能，部分適用非訟法理。根據現行法，“違約金過分高於損失”的證明責任應由違約方承擔，且不能轉移。違約方的證明困難屬於法官自由心證的範疇，在具體訴訟中可以通過事案解明義務緩解，但不改變證明責任、證明標準以及由此决定的本證與反證的區分。違約金調减衡量因素的調查不存在證明責任問題，應圍繞法官自由裁量權的行使，在訴訟法理與非訟法理的交錯適用中展開。

In interpretation of the latter part of article 585, paragraph 2 of the Chinese Civil Code, 'the liquidated damages are excessively higher than the loss' should be understood as the constitutive elements of the right to request for the reduction of liquidated damages, and the exercise of the judge's discretion be understood as its consequence. This distinction corresponds to the dual function of liquidated damages, and provide a clearer trial idea for the request for reduction of liquidated damages. Specifically, the trial of the constitutive elements corresponds to the compensatory function of liquidated damages, for which contentious proceedings are applicable; The trial of discretionary factors corresponds to the pressure function of liquidated damages, for which non-contentious proceedings are partly applicable. According to the current law, the burden of proving that 'the liquidated damages are excessively higher than the losses' should be borne by the defaulting party and cannot be transferred. The difficulty of proof is a subject of the judges free evaluation of evidence. In specific proceedings, it can be alleviated through the parties' obligation to clarify the case, but the burden of proof, the standard of proof and the related distinction between assertive evidence and counter evidence will be never changed. The investigation of the Discretionary factors of liquidated damages reduction has nothing to do with the burden of proof. It should focus on the exercise of judges' discretion and be promoted though the alternative application of contentious proceedings and non- contentious proceedings.