Research On The Punitive Liquidated Damage

The punitive liquidated damage as a kind of liquidated damages, is widely usedin reality. For lack of attention of what is meant by punitive liquidated damages, thereare still many deficiencies in research on punitive liquidated damages, there are alsomany problems in the practice of punitive liquidated damages. In this paper, thedefinition of punitive damages will be the theoretical starting point, combing throughrelevant definitions on punitive liquidated damages and China’s legislation andjudicial practice on punitive liquidated damages, we should define punitive liquidateddamages in the theory of responsibility in parallel; on the basis how to define punitiveliquidated damages, it is sure that punitive liquidated damages has the importance ofnecessary; finally it makes the specific applicable system construction of punitiveliquidated damages.Besides the foreword, the paper which amounts to35000words could be dividedinto four parts.The first part, it makes research on the definition of the liquidated damagespunitive. In this part it first combed the research on the standard definition of punitiveliquidated damages four theory in our country, including the theory of responsibilitiesin parallel, the theory of loss compare, the theory of either standard and the theory ofpurpose,the theory of responsibilities in parallel is the main theory. Secondly, it makeresearch on China’s relevant punitive legislation and judicial practice of punitiveliquidated damages, the article points out that the current legislation completely lackof the provisions of punitive liquidated damages; in the judicial practice it always usethe theory of loss compare to defined punitive liquidated damages,which is acomplete departure from the main theory in academia. Finally, combined withlegislation and the judicial practice, it compares different definitions of the punitiveliquidated damages. Compared to the theory of loss compare, the theory ofresponsibility in parallel is more conducive to achieving the functions of punitiveliquidated damages and it can make more clear definition of punitive liquidateddamages too; the theory of either standard is from semantic confusion and is easy tocause the system alienation and practice chaos; the theory of purpose is lack ofpractical defects. Comprehensive comparison, we should use the theory of responsibility in parallel to defined.The second part, it makes research on the necessity of punitive liquidateddamages. In this part it firstly compares attitude to the punitive liquidated damages inforeign major countries, there are difference in the legislation of punitive liquidateddamages in the continental law system, but the continental law system countrygenerally approve punitive liquidated damages; Common law countries defined(penalty) in the theory of loss compare, so that there is no strictly punitive liquidateddamages and common law countries generally fine to a negative attitude, but in recentyears the negative relented. Secondly, make research in our country’s legislation andjudicial practice to the attitude of punitive liquidated damages. There are nolegislation about punitive liquidated damages in China now, but the present legislationhas not banned punitive liquidated damages; The court trial have always ignored theparties agreed on punitive liquidated damages, but judicial practice also does notnegate punitive liquidated damages. Finally, it points out that the acceptance onpunitive liquidated damages can help to realize the function of liquidated damages,can help to respect the autonomy of the parties and the acceptance on punitiveliquidated damages will not violate fair principle, so it should be sure the necessity ofpunitive liquidated damages.The third part, it makes research on specific system construction of punitiveliquidated damages. It points out that applying punitive liquidated damages shouldhave the definite agreement for the premise, the definite agreement shall have themeaning of "responsibility parallel", but not to "punish" the meaning expression fornecessary, at the same time cannot presume the punitive liquidated damages;Applying punitive liquidated damages for breach party needs existence fault forelements; Not required for the actual loss. Secondly, how to apply the punitiveliquidated damages in different default form, punitive liquidated damages may applyto perform delay, performance cannot, perform refused and not fully performed, etc.If it was agreed punitive liquidated damages respectively in different default form,only in the evolution of the default form does not exist necessity,it can apply punitiveliquidated damages many times. Finally, it make research on the the relationshipbetween punitive liquidated damages and other responsibility of breach. Punitiveliquidated damages can usually apply with other responsibility of breach, but as therelationship between the deposit and punitive liquidated damages, punitive liquidateddamages may only apply with the contract-breaking deposit. Finally, it make research on the the adjustment of punitive liquidated damages. The amount of liquidateddamages punitive shall not exceed20%of the contract bid, when punitive liquidateddamages apply with deposit,the amount must not exceed20%of the contract bid; Ifapply punitive liquidated damages in different form for breach respectively, everytime use the amount of liquidated damages punitive shall not exceed20%of thecontract bid. And shall clarify the court’s power to adjust punitive liquidated damageson there own according to the adjust rules.