On The Adjustment Of Liquidated Damages

Liquidated damages system has a long history and it is widely used in the world. In China's "Contract Law", item 114 also provides it. But whatever in theoretical or practical circles, people have obscure knowledge about the nature of liquidated damages to the property, the differences of other civil liability, the value of the system and the range of adjustment. This paper aims to redefine the nature of liquidated damages and value by analyzing penalty and its adjustment system, basing on the analysis of our country's current legislation and the existing problems in judicial practice, then puts forward the views for the academic references, in the hope of establishing a more clear-cut liquidated damages'adjustment system. This paper is divided into preface and the principal argument, besides preface, a total of four parts'main elements of principal argument are as follows:The first part, the introduction to the penalty adjustment. By examing the fundamental issues of liquidated damages, it discusses liquidated damages itself and the origin of its adjustment, concepts, legal characteristics, composition elements, its nature and the adjustment's theoretical foundations. This paper considers that people can not simply define the nature of liquidated damages as compensatory or punitive, but should admit that the two are in cross-state under certain circumstance. Meanwhile, disagrees with Academia's view of "teleology".The second part, it mainly discusses the legislation of liquidated damages' adjustment and its judicial practice home and abroad. This artice investigates separately the legislation and the judicial practice of Anglo-American legal system and civil law system countries. It chooses the United Kingdom and the United States as typical cases for Anglo-American legal system, and chooses France, Germany and Japan as the other civil law system's representative. Furthernore, the author will investigate the laws and regulations relating to liquidated damages of recent years and the relevant judicial interpretations.The third part, the existing problems of liquidated damages'adjustment in legislation and judicial. In China, there are existing many problems in liquidated damages'legislation, for example, the time limit of the adjustment for the penalty to request that the power exercises is not clear, the related request delay fulfillment compensation stipulation is also unclear, the abuse of judge's interpreting right in judicial practice, the different standards of liquidated damages amount in judicial practice, and different opinions on "appropriate reduction".The fourth part, the legislation of liquidated damages adjustment and the judicial advice. The author puts forward the solutions of the list questions above. In legislation, people should restrict the deadline of adjusting the form of contigent claim and re-discuss the related theory of delaying fulfilling compensation. In judicial, the judge should be strict to the scope of interpretation right, clear and define the standard of liquidated damages'adjustment, and how to define the meaning of "excessively high " and "appropriate reduction".