【线上云德】疫情期间律师说（一百一十九）┃商品房买卖合同中违约金的适用

近年来，基于我国房地产市场的日益繁盛，无论居住还是商业经营，商品房买卖的需求量也随之不断上升。当然违约也就成为当事人之间苦恼的问题。在商品房买卖合同中，当事人可以约定根据违约情况，违约方应当向对方支付一定数额的违约金。违约金如何约定适用？

In recent years, due to the increasing prosperity of my country's real estate market, whether residential or commercial operations, the demand for commercial housing sales has also increased. Of course, breach of contract has become a problem of distress among the parties. In a commercial house sale contract, the parties may agree that the breaching party shall pay the other party a certain amount of breach of contract damages based on the breach. How does the liquidated damages apply?

违约责任作为民事责任的一种,是违约行为在法律上得以规制的客观后果,是当事人一方不履行合同义务或者履行合同义务不符合约定时应承担的民事责任。违约金作为违约责任的一种承担方式,相较于其他违约责任承担方式而言,有其较为显著的优点:避免举证困难,有利于守约人的利益得到较为迅速、实际的保护。

在我国,适用违约金的基本条件有二：

1、当事人之间约定了有效的违约金条款。这意味着:第一,当事人之间的合同是有效的。违约金的支付是违约责任的承担方式,而违约责任的承担需要以合同有效为前提,如果当事人之间的合同被认定无效或被撤销则不存在承担违约责任的问题,更无从谈违约金的支付。第二,当事人约定了以支付违约金的方式承担违约责任,这是对当事人意思自治的尊重,也是守约人主张违约金的根据所在。

2、当事人有违约行为。义务的违反意味着责任的承担,只有当事人不履行合同或者履行合同不符合合同约定的条件时,才承担违约责任,适用违约金条款。

Liability for breach of contract, as a kind of civil liability, is the objective consequence of the breach of law being regulated by law, and it is the civil liability that a party should bear if it fails to perform its contractual obligations or the performance of its contractual obligations does not comply with the agreement. As a way of assuming liability for breach of contract, liquidated damages have its obvious advantages compared with other ways of assuming liability for breach of contract: it avoids the difficulty of proof, and it helps the interests of the contractor to be protected more quickly and practically.

In my country, there are two basic conditions for the application of liquidated damages:

1. Effective liquidation clauses have been agreed between the parties. This means: First, the contract between the parties is valid. The payment of liquidated damages is the method of assuming the liability for liquidated damages, and the liability for liquidated liquidation needs to be premised on the validity of the contract. Pay. Second, the parties agreed to bear the liability for breach of contract by paying the breach of contract. This is respect for the party’s autonomy and the basis for the breach of contract.

2. The party has breached the contract. Violation of obligations means the acceptance of liability. Only when the parties fail to perform the contract or the performance of the contract does not meet the conditions stipulated in the contract, they will be liable for breach of contract and the penalty clause shall apply.

支付违约金后仍不足以弥补守约人损失的,守约人是否可以继续主张赔偿损失,是司法实务中常见的问题。此问题的解决,依然与违约金的性质有关。前已述明,我国违约金以补偿性违约金为原则,即违约金数额可以理解成当事人在订立合同时预先估计的大致损失总额,在发生纠纷时就不必重新计算实际的损失金额,便于双方当事人,也避免了举证的困难。在一般情况下,当事人约定的违约金数额与守约人的损失数额是大体相当的。由于现实情况多变,最终若约定的违约金数额小于实际损失,虽然违约金已支付,但是守约人的损失依然没有得到充分赔偿,就违背了公平原则。此时守约人有权要求增加违约金,以弥补对方违约给自己造成的损失。但从形式上看,当事人的请求应当为“调高违约金”或“增加违约金",而不是同时请求给付违约金和赔偿损失。

If payment of liquidated damages is still insufficient to cover the loss of the observant, whether the observant can continue to claim damages is a common question in judicial practice. The resolution of this problem is still related to the nature of liquidated damages. As stated before, China's liquidated damages are based on the principle of compensatory liquidated damages, that is, the amount of liquidated damages can be understood as the approximate total amount of losses estimated by the parties when the contract is concluded, and there is no need to recalculate the actual amount of losses when disputes occur, which is convenient for both parties. The parties also avoided the difficulty of proof. In general, the amount of liquidated damages agreed by the parties is roughly equivalent to the amount of loss of the contract-keeper. Due to the changeable reality, if the amount of liquidated damages is less than the actual loss, although the liquidated damages have been paid, but the loss of the promised person is still not fully compensated, it violates the principle of fairness. At this time, the observant has the right to request an increase in liquidated damages to make up for the losses caused by the other party's breach of contract. However, from a formal point of view, the request of the parties should be "increasing the liquidated damages" or "increasing the liquidated damages", rather than requesting the payment of liquidated damages and compensation for losses at the same time.