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约定分期交付定金后,应付定金方仅依约为部分交付而拒付剩余部分时,法院就如何适用定金罚则产生了返还所收定金、没收定金和双倍返还定金三种意见。没收定金和双倍返还定金是以解释法律为基础的部分有效论,返还所收定金是以利益衡量为基础的全部无效论,但两种理论下的三种结果均存在逻辑上的矛盾。《担保法》关于定金契约的要物性要求是造成此司法实践困境的原因所在,以此为基础演绎出的定金契约效力之有效、无效和部分有效的认定结果均存在理论和实践中的诸多悖论实属必然。故建议在将来中国民法典中,定金契约应当作诺成性制度设计。
After the agreed delivery of the deposit in installments, the depositor shall only pay the remainder of the deposit based on the partial delivery, and the court will have three opinions on returning the deposit, confiscating the deposit and double the deposit. The confiscation of the deposit and double the return of the deposit is based on the interpretation of the law as part of the effective theory, the return of the deposit received is based on the measurement of the benefits of all the ineffective, but the three results under both theories are logically contradictory. “The Law of Guarantee” on the physical property requirements of the deposit contract is the reason for the dilemma of judicial practice, the deduction of the effectiveness of the contract on the basis of the validity of the contract, invalid and partially valid findings have many problems in theory and practice On the inevitable. Therefore, it is suggested that in the future Chinese Civil Code, the deposit contract should be designed as a promise-based system.