《合同法》第114條（約定違約金）評注

Comments on Article 114 of Contract Law (Agreed Payment for Breach of Contract)

《合同法》第114條中的違約金屬於約定的違約責任，可表現為確定金額或計算方法，兼具補償功能和擔保功能。違約金發生給付效力以有效的違約金約定和相應的違約情事為要件。針對遲延履行以外的違約形態所約定的違約金，原則上屬於對相應違約行為所引發之全部損害的賠償總額預定，此乃處理違約金與法定違約責任關係的關鍵。違約金可與合同解除並行適用，不應適用不定期債務訴訟時效的起算規則。《合同法解釋（二）》第28條、第29條針對違約金司法調整所規定的“實際損失”應理解為包括所受損失和所失利益在內的可賠損害。違約金司法增額規則屬於司法裁量權介入機制，與違約金作為損害賠償最低額預定有所不同。

As agreed liability for breach of contract, agreed payment for breach of contract in Article 114 of Contract Law can be expressed as a definitized amount or a calculation method. It works with bi-founction character (compensation function and press founction) in transaction. The payablility of agreed payment for breach of contract requires a valid agreement concerning the payment, as well as the corresponding breach of contract. Agreed payment stipulated for the form of defaults other than delay in performance, in principle, estimates the total amount of compensation for the total damage caused by the corresponding breach, which is the key to deal with the relationship between agreed payment and statutory liabilities for breach of contract. Agreed payment for breach of contract may be applied in parallel with the termination of contract and shall not follow the rules for the commencement of limitation for indefinite debts. The 'actual loss' for the judicial modification for agreed payment for breach of contract in Article 28, Article 29 of Interpretation of the Supreme People's Court on Several Issues Concerning Application of the Contract Law of the People's Republic of China (2) shall be understood as compensable damage, including loss actually suffered and lost profit. The judicial increase of agreed payment for breach of contract, which runs as a mechanism of intervention with judicial discretion, is different from the approach of 'agreed payment plus damages compensation'.