A Study On Liquidated Damages System

Liquidated damages system is a basic system of contract law，it is one of themain ways to bear the liability for breach of contract and it have very importantposition in contract law. Along with the development of themarket economy in ourcountry， the increasing of economic exchanges and economic disputes， theliquidated damages system has been widely used， the study of liquidated damagessystem has very important significance in theory and judicial practice. New revisionof the Contract Law on the liquidated damages， before comparing the penalty due toliquidated damages system， has been clear about the compensation of liquidateddamages. The interpretation Contract Law2of the supreme court has relevantprovisions on the judicial application of liquidated damages， but as a result ofpractice of liquidated damages is vague， lead to when the referee penalty due toliquidated damages case， there will be a very different result.At first， this paper studies the theory of liquidated damages syetem， this paperintroduces the concept of liquidated damages syetem， the time of the conclusion ofthe contract is the parties to a contract agreed upon in advance， in one of the partiesfails to perform the contract or the contract is not at the time， should be to the otherparty to pay a certain amount of money or other payment. Liquidated damages has thefollowing characteristics: the amount of liquidated damages mainly by the partiesidentified by prior agreement;liquidated damages as agreed by the parties in breach ofcontract by one party after the occurrence of payment of money or other payment toanother party; liquidated damages system are into the contract; liquidated damagesclause is to have the terms of the properties， it is attached to the main contract.Secondly liquidated damages system of historical development are analyzed in thispaper， and made a general introduction of the development in civil law countriesand Anglo-American law system countries our country.Thirdly according to differentstandards， the liquidated damages are divided into: punitive liquidated damages andcompensation for breach of contract， statutory liquidated damages and the liquidateddamages.In this paper，the liquidated damages system are compared with those of theother default relief way; And then through the analysis of continental law systemcountries represented by Germany， France and Britain， the United States as therepresentative of the legislation and practices in the countries of Anglo-American lawsystem， reveals the awareness of the liquidated damages system have different point of view， and summarizes the advanced experience of several Suggestions to perfectthe penalty system in our country. Finally， by analyzing the current situation oflegislation of liquidated damages system in China， starting from the actual case ofreality， points out problems existing in the judicial practice of penalty due toliquidated damages system， and put forward its own suggestions to perfect thissyetem.