服务期违约金性质研究
Research on the Nature of Liquidated Damages during Service Period

服务期违约金制度作为用人单位留住人才的重要手段，在实践中一直被广泛适用。关于服务期违约金的性质问题学界存在补偿性和兼具补偿性和惩罚性两种观点。域外关于服务器违约金的法律制度也不尽相同，日韩等国禁止设置服务期违约金条款，德国和美国的服务期违约金兼具赔偿性和惩罚性，法国的服务期违约金则仅具赔偿性。2008年《劳动合同法》的出台确定了我国服务期违约金的补偿性，司法实践也严格践行了相关规定。但是，在劳动者多元化和分层化的现在，应对劳动者进行分层保护，区分适用两种不同性质的服务期违约金。
As an important means for employers to retain talents, the system of liquidated damages during service periods has been widely applied in practice. There are two viewpoints on the nature of liquidated damages during service periods in academic circles: compensatory nature and both compensatory nature and punitive nature. There are also different legal regimes for severe liquidated damages. Japan, South Korea, and other countries prohibit the establishment of liquidated damages for the service period, Germany and the United States of America both compensation and punitive, France’s liquidated damages only compensation. In 2008, “Labor Contract Law” was promulgated to determine the compensatory nature of liquidated damages during the service period, and the judicial practice strictly implemented the relevant provisions. However, in the diversification and stratification of workers now, workers should be stratified protection, apply two different types of service period liquidated damages.