The Theory Of Interpretation In Liquidated Damages Reduction

Court to start the liquidated damages reduction program, at present, our country is in accordance with the parties apply for reduction of legislative mode, however, there is such issue in the concrete to apply the liquidated damages clause reduction system, namely, the problem of high for penalty due to breach of contract, the court can start according to the power reduction amount of liquidated damages, there is a range of the application that judge has the right to exercise the interpretation right.The body of this article including about 20000 words, in addition to introduction, the article is divided into five parts:Part One: Putting forward problems. Legislative dilemma has two main aspects: first, no provision for liquidated damages reduces it in the judge’s interpretation of the Chinese Civil Procedure Law. Second, the second contract law interpretation, civil and commercial contracts guidance, sales agreements between the explanation of the Explanation of different perspectives, interpretation of nature can not be defined. China’s relevant judicial interpretation position, the actual trial judge’s understanding and application of judicial interpretation is not the same. Through the Supreme Court judicial interpretation and analysis of the case, whether the judge should release put out, how to conduct a reasonable interpretation and other core issues.Part Two: Liquidated damages reduce it in the next release of legitimacy. Interpretation missing provisions in the law for the confusion people questioned in the Judicial Interpretation on whether applicable space to reduce it in the case of breach of contract. Interpretation is to establish the foundation of civil action by the inquisitorial model converted to party doctrine, totally dependent on the parties to restore the truth of the case, because the parties do not understand the law and ignore the focus of controversy, by the judge and the parties Interpretation rights litigation configuration can be shared. Interpretation is based on the core principles of the establishment of adversary proceedings modes and debate doctrine and disposition, and the next release is the complement to these two core principles. Interpretation is the real basis of party litigation capabilities are different, in order to make the parties in litigation proceedings in a position of equality for substantive equality, the ability to judge Interpretation balance through litigation both parties.Part Three: Interpretation of the nature of the breach of contract initiation. The Court of Justice of the parties was liquidated damages for the powers of the Court Interpretation characterization. Currently on interpretation there are three main theories of nature, ‘The theory of obligation’ to characterized the interpretation as duty judge, the parties have the right to receive judge’s interpretation, as the rights of the parties Interpretation may decide to give up, which prevents the release of judges interpretation; if the parties actively exercise that right, in theory, there have been parties to exercise their rights by asking the judge to reduce it to the explanation of liquidated damages, the parties have to liquidated damages too have their own understanding but must perverse judge’s interpretation of theory. ‘The theory of right’ regarded interpretation as rights of judges, but also can give up this right, then the establishment of the explanation to no purpose at all. ‘Right and Duty’ embodies the powers of judges to intervene on such interventions have the discretion of the judge, and the need to limit the obligation of. The interpretation generally considered to be binding rights and obligations, is not conducive to distinguish exclusions of interpretation, interpretation makes no reasonable judge arbitrary restrictions apply. Interpretation will be characterized as the right to judge, with jurisdiction attributes, without the control of the parties will, from the judicial power of the state, a judge advocate and guide clients in directing the parties on the appropriate action to provide adequate power suit material. The interpretation characterized as powers of a judge can overcome the above defect theory, maximize interpretation function.Part Four: Reduce it in the next release of liquidated damages apply. Interpretation as the powers of a judge, it is necessary to exercise interpretation consistent with fundamental principles of judicial power, but also reduce it for liquidated damages in the explanation of special requirement applies. Interpretation of evidence as a judge public media should be reasonable applicable, must be applicable to specific elements. Interpretation of the basic conditions for the parties claim exemption defenses; the best point is the final oral arguments in the trial as long as the parties put forward a defense exemption, the court shall release the debtor out; the number should interpretation and only once. Reasonable interpretation of the legal effect of the parties informed by the judge to release formal equality, reduce it to know their own right to apply liquidated damages.Part Five: Interpretation of liquidated damages reduces it in improper relief. The actual trial, the judge may have negligence or error in understanding the laws and regulations and interpretation inappropriate. Interpretation property has jurisdiction, the judge improperly exercised interpretation prejudice the rights of the parties to achieve, must be to ensure the legitimacy of interpretation by setting the appropriate relief mechanism. And reduce it in liquidated damages, judge’s interpretation of the law belongs to a breach of procedure 170 of the Civil Procedure Law, the parties may use this as grounds of appeal.