| 释义 |
penalty
n. 1. A punishment for a crime. A penalty must be clearly stated before it can be enforced. When statute creates an offence and specifies a penalty without saying how the offence is to be tried, there may be an implication that it is to be imposed by a magistrates’ court. Retrospective penalties are penalties imposed by the criminal law for behaviour that was not an offence at the time it occurred. This is contrary to the principle of the common law and to Article 7 of the European Convention on Human Rights and therefore the Human Rights Act 1998. 2. A sum specified in a contract as payable on its breach but not constituting a genuine estimate of the likely loss. In Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 (HL) the court distinguished between liquidated damages clauses (which are enforceable) and penalty clauses (which are not). However, in ParkingEye Ltd v Beavis [2015] UKSC 67 the Supreme Court ruled that a clause is not a penalty (and is therefore enforceable) if it “serves a legitimate purpose” and is not “manifestly excessive”. In the words of Lord Hodge, “the correct test for a penalty is whether the sum or remedy stipulated as a consequence of a breach of contract is exorbitant or unconscionable when regard is had to the innocent party’s interest in the performance of the contract”. 3. A sum that may be levied on a taxpayer who fails to make a correct tax return as required by statute. Where a taxpayer fails to make a return, a fixed penalty is leviable. Where a taxpayer fraudulently or negligently delivers an incorrect return, the penalty is calculated as a percentage of the tax lost by the taxpayer’s fraud or negligence. HM Revenue and Customs has the power to mitigate a penalty. Tax penalties have been held to be punishments for crime. Under Article 6 of the European Convention on Human Rights, therefore, the imposition of a tax penalty is subject to the citizen’s right to a fair trial (King v Walden [2001] STC 822 (Ch)). See also surcharge. |