Study On The Adjustment Of The Amount Of The Liquidated Damages

《Contract low of the People's Republic of China》 ( below brief name contractlow) article 114 demonstrate a legal theory foundation for to the adjustment of theamount of the liquidated damages: freedom of contract and its restrict, liquidateddamages nature, multipartite balancing of interest and right of discretion restrict fouraspects. The freedom of contract and contract justice should supplement each other andjoin force together, which is a foundation legal theory that the adjustment of theamount of the liquidated damages. The punitiveness and the compensationness is theliquidated damage's function rather than nature. The liquidated damages natureincludes to the nature of guarantee and the nature of civil duties. The adjustment of theamount of the liquidated damages is an inevitable result that is even to balance thebenefits among the observant party, delinquent party and society. In the aspects of theadjustment of the amount of the liquidated damages, the judge must have a rule to beobserved with applying the right of discretion. It is the source to causes the adjustmentof the amount of the liquidated damages confusion of having no the " degree"adjudication. In the adjustment of the amount of the liquidated damages, should obeytwo principles which is the public right due intervention and major compensationess tominor punitiveness. The adjustment of the amount of the liquidated damagesis a rightof formation, which exercises with necessity of obligee puts forward. the liquidateddamages that The contract law article 114 definite belongs to the compensationnessliquidated damages ,but the contract law do not reject the punitiveness liquidateddamages. It is necessity that the contract law support the punitiveness liquidateddamages. The party may agree on it in the contract. If the agreement don't agree on thenature of the liquidated damages, It should to proceed reasonable explain to confirm itsnature. The adjustment of the amount of the liquidated damages should to consult somefactor, these factors contain principle factor and concrete factor. Property loss factor,general object of contract factor and fault factors belongs to the principle factor thattakes decisive effect on the determination of the adjustment of the amount of theliquidated damages. In the adjustment of the amount of the liquidated damages, therule of amount limit and the rule of no reduction in accordance with intention and therule of amount can offering the convenience to compute the liquidated damages.Thenon-property loss, the difficult degree to replace the bargain, the accrual or not, the partperformance, the breach of contract circumstance etc, belong to concrete factor, It allshould to consider when adjust the liquidated damages.