違約金調減權及其行使與證明

The Reduction Right of Liquidated Damages and Its Execution and Proof

《合同法》第114條第2款後段規定：“約定的違約金過分高於造成的損失的，當事人可以請求人民法院或者仲裁機構予以適當減少。”這種權利應被定義為違約金調減權，在性質上是一種形成訴權。違約金調減權歸屬於當事人，並應以訴、反訴或反請求的方式行使，若當事人在一審中沒有放棄，二審中仍然有權行使。對違約金調減權的行使進行釋明具有合理性，且屬於法官可以自由裁量的職權。法官釋明時須保持中立、公開並尊重當事人的處分權。法官未釋明不構成上訴理由，但過度釋明則當事人可申請回避。調減程序中，“違約金過分偏高”的證明責任由違約方負擔且不發生轉移，但在舉證困難的例外情形，法官可通過降低證明標準、詢問當事人等方式緩和其證明負擔。

It is stipulated in the last paragraph of Article 114 (2) of The Contract Law： 'where the amount of liquidated damages prescribed exceeds the loss resulting from the breach, a party may petition the People's Court or an arbitration institution to decrease the amount as appropriate'. Such right should be defined as the reduction right of liquidated damages, and in its nature, is the right of formation through suit. The reduction right of liquidated damages, belonging to contractual parties, shall be executed in ways of suit and counterclaim. And such right can still be executed by the parties in the procedure of second instance in case of not being waived in the procedure of first instance. It is reasonable for the judge to interpret the execution of reduction right of liquidated damages under his (her) discretionary power. When interpreting, the judge shall remain neutral, open and respect the parties' right of disposition. The failure of interpretation does not constitute the reason for appeal, but parties may apply for withdrawal in case of excessive interpretation. During the procedure of reducing the liquidated damages, the burden of proof for 'excessively high liquidated damages' is on the breach party and shall not be transferred. However, under the special circumstances where producing evidence is of too much difficulty, the judge may ease the breach party's burden of proof through reducing the standard of proof and inquiring the parties.