On Adjusting The Amount Of Liquidated Damages

Liquidated damages as a way of breach of contract, between the parties fully reflects the meaning of autonomy, best embodies the principle of freedom of contract. Parties to the contract in a variety of reasons, the agreement for liquidated damages resulting from breach of contract may have a greater gap between the actual consequences, which relates to the legal regulation of liquidated damages issue. Domestic legislation provide for the judiciary can under certain conditions, to adjust the amount of liquidated damages. In this paper, China's legislative and judicial practice as an object, combined with advanced extra-territorial legislative experience, adjusted for the amount of liquidated damages issues were discussed.The following text is divided into three parts:The first part is to adjust the amount of liquidated damages the general analysis. In this section, an analysis of the meaning and nature of liquidated damages, then the principle of fairness and balance of interests from the two perspectives of the liquidated damages amount to adjust the basis of law; Finally summed up, respectively, civil law and common law to adjust the agreed liquidated damages relevant regulations. The second section summarizes the amount of liquidated damages to adjust our status and problems, summed up the amount of liquidated damages to adjust our status of legislation and judicial practice, the status quo, but also from the angle of the legislative and judicial practice in China to adjust the amount of liquidated damages problems. This paper argues that the amount of liquidated damages provisions in the legislation to adjust the existence of legislation and judicial interpretation is not clear penalty claim adjustment period, the parties the burden of proof is not clear and other issues; adjust the amount of liquidated damages provisions exist in the judicial practice of abstraction and ambiguity led the People's Court and Arbitration Commission discretion is too large, the abuse of the judge right to release tomorrow, to adjust the amount of liquidated damages is inconsistent differences in the amount of adjustment problems. The third part discusses the amount of liquidated damages to adjust our strategies, first discuss the adjustment of the reference standard liquidated damages, liquidated damages for the adjustment of high standards, to consider the breach of contract damages, the total target amount of the contract, limit the amount of the end of the standard, subjective factors, the defaulting party at fault, the party identity and contractual capacity, an alternative transaction and other factors; penalty for too low a standard adjustment; then discussed that bear the burden of proof to the party in breach to bear the "liquidated damages agreement had higher than the actual losses" the principle of burden of proof to bear the non-breaching party "agreed liquidated damages, but the actual loss from" the burden of proof for the exception. Judge right to release tomorrow for the application to, exercise the right to release tomorrow a prudent principle, to exercise the right to release tomorrow as an exception.