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Research On The Adjustmet Of The Liquidated Damages

Posted on:2014-04-28Degree:MasterType:Thesis
Country:ChinaCandidate:M G LuoFull Text:PDF
GTID:2256330425977044Subject:Law
Abstract/Summary:PDF Full Text Request
Under the current background of increasingly frequent and complexmarket transactions, penalty is an important design of urging the partiesto comply with the contract and punishing the breaching party tocompensate the other party, making an important contribution to thedevelopment of market economy. However, due to the different positionsof the parties, different levels of care and the risky behavior which isleaded by competition, the penalty varies significantly. In order toachieve a fare solution, an adjustment system was set up in the contractlaw which allows the parties to adjust penalty which is much more loweror higher than the liquidated damage. Due to the ambiguity of the currentlaw, the judgers are bothered by excessive penalty and other problemduring the lawsuit, such as, how to adjust the penalty, how to apply thepenalty adjusting rule and how to allocate the burden of proof of theparties. Under the discretion, the results of different decision will leadto injustice. Not only the enthusiasm of traders will be frustrated, the development of economic will be influenced, but also the judicialcredibility will be damaged.This article attempts to discuss the adjustment of penalty in orderto create a more detailed adjustment method. As it is unlikely that theparties will demand an increase in penalty, our court will focus on howto reduce the penalty.The article is written from two aspects, which is, entity andprocedure respectively.Regarding to entity aspect, firstly, the principle of adjustment islisted as below: analyze the damage benchmark, fault offset, profit andloss offset and foreseeability. Secondly, this article discusses theapplication of penalty adjustment. Is about the applicable elements ofpenalty adjustment. Thirdly, the exposition of statutory penaltyadjustment and the cognizance of the losses are also discussed in thisarticle.As for procedure aspect, firstly, the parties request adjustment isthe main mode, while count request adjustment as supplement. Secondly,the parties may require adjustment in the form of prosecution, defenseand counterclaim. And the judge has interpretation obligation. Moreover,the other party may request the adjustment if the default party has notto mention. Thirdly, deadline of adjustment requesting is analyzed.Lastly, reasonable distribution of the party’s proofing responsibilityis reasonably distributed.Then, under the specification of both entity and procedure, theadjustment of the excessive penalty will become systematic. Relativelyuniformed judicial judgment maintains the fairness of the result, protecting rights and interests of both parties. It furthers justice’srole in escorting economic development.
Keywords/Search Tags:liquidated damages, adjustment, applicableprinciples, entity, procedure
PDF Full Text Request
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