Research On The System For Adjustment Of The Amount Of Liquidated Damages

Relevant provisions about adjustment of the amount of liquidated damages in the existing legislature of our country establish that court and arbitration agency shall measure and adjust the amount of liquidated damages on the principle of equity and good faith, with loss caused by the breach of contract as the main criteria, and taking accounts of comprehensive factors such as the circumstance of performance of the contract, the degree of fault of the parties and the anticipated profit. However, there is no perfect and specific provision about the nature of liquidated damages, the procedure and basis of adjustment, relevant burden of proof and instruction issues, especially the criteria of adjustment of the amount of liquidated damages, which causes many debates in academic world, and practitioners do not know what to do, and it is difficult to standardize and unify the judgments, not to mention giving attention to efficiency and justice, which gives rise to confusions to dealing with issues of adjustment of the amount of liquidated damages. For the purpose of avoiding serious unbalance of interests of both parties and unconscionable result caused by improper adjustment, this paper, with combination of theories and judicial practices, starts with the nature of liquidated damages, the procedural and substantive issues of adjustment of the amount of liquidated damages, especially the criteria of adjustment and other aspects, and conducts some empirical analysis, comparative analysis, value analysis, logical analysis and economic analysis, and proposes some concrete opinions and legislation proposals for perfecting the system for adjustment of the amount of liquidated damages with respect to existing problems in the system for adjustment of the amount of liquidated damages in our country. The main content of this paper is divided into five sections:Chapterâ… , relevant concepts about adjustment of the amount of liquidated damages. This Chapter firstly elaborates on the concept of liquidated damages, adjustment of the amount of liquidated damages and the system for adjustment of the amount of liquidated damages; then, briefly presents the mode and scope of application of adjustment of the amount of liquidated damages and other contents; after that, distinguishes different kinds of liquidated damages and recites various kinds of arguments, and further brings forward my own opinion and reason, and shows the value of distinguishing different kinds of liquidated damages for adjustment of the amount of liquidated damages.Chapterâ…¡, the current situation and existing problems of adjustment of the amount of liquidated damages in our country. This Chapter mainly conducts an inductive analysis in respect of the current legislation and judicial practice about liquidated damages in our country, and on such basis points out the main problems in existing system for adjustment of the amount of liquidated damages in our country.Chapterâ…¢, the procedure issues of adjustment of the amount of liquidated damages. The content of this Chapter is procedure of adjustment of the amount of liquidated damages, the adjustment procedure is initiated by claims made by a party, and then court or arbitration agency shall adjust to increase or decrease the amount of liquidated damages based on the specific details of a case. Meanwhile, conducts some research on relevant burden of proof of the parties during adjustment, and raises the viewpoint that the party claiming adjustment shall bear the burden of proof.Chapterâ…£, the substantive issues of adjustment of the amount of liquidated damages. This Chapter is the emphasis of this paper. Firstly, it establishes the basic principle of adjustment, and establishes that adjustment shall center on the principle of autonomy of the will; then, it discusses the applicable conditions of adjustment and basis of adjustment; after that, it voluminously and persuasively expounds the criterion of adjustment of the amount of liquidated damages, and puts forward that different adjustment criterion shall be applied to liquidated damages of different nature, the loss caused by breach of contract shall be the main criteria for compensatory liquidated damages, and autonomy of the will of the parties shall be the main criteria for punitive liquidated damages; finally, and it probes into exemption of the amount of liquidated damages, and comes to a negative conclusion.Chapterâ…¤, in lieu of conclusion :the value of perfecting the system for adjustment of the amount of liquidated damages and legislation proposals. Section 1 discusses the value of perfecting the system for adjustment of the amount of liquidated damages. Section 2, in combination with the analysis results of the full paper, proposes some legislation proposals for perfecting the system for adjustment of the amount of liquidated damages in our country.