Research On Judicial Adjudication Of Excessive Adjustment Of Liquidated Damages

Breach of the judicial adjustment both in legal theory and judicial practice field is an important issue of concern,the penalty system in civil and commercial transactions as the most common breach of right remedy way,to guarantee the normal performance of the contract and the contract risk prevention of overweight has an important role and significance.But the penalty is in private law,the parties according to the principle of freedom of contract products fully applicable,such as the use of public power to be the appropriate intervention,will inevitably occur in the event of breach of contract after the parties to the main body of the power imbalance of compulsory unfair situation,resulting in damage to the freedom of contract and contract justice principle,this is to say,design and reasonable structure of the adjustment of the penalty system is very necessary.The present provisions of our country gold adjustment system default content is general,put forward high requirements for use in the judicial process of the discretion of the judge,so in the analysis of the data found that the referee,referee differentiation situation is more prevalent in the.Collect and analysis as a starting point from the public data of China's judicial adjudication,the current can be obtained in the trial practice on the allocation of the burden of proof,the judge's adjustment of liquidated damages,the loss should be on how to identify areas in which there are many problems,these problems caused the referee results there is a great difference.Although the judicial interpretation of China's "contract law" to the default adjustment rules of gold are discussed,but there are still many problems in the regulations is not clear,so in the administration of justice in the legal provisions for the applicable scale is not consistent.This paper first analyzes and explores the theoretical basis of the adjustment of the penalty,research on the theoretical basis of the adjustment of the penalty system,to find the legitimacy and necessity of the establishment of the liquidated damages,confirmed that this is due to the nature of the breach and the characteristics of gold itself of the decision,through the correction for the freedom of contract to achieve the contract justice,and to balance the interests between the parties in order to highlight the fair.Then further analysis the rules and characteristics of the adjustment of the penalty system in our country,discusses the nature of the penalty function,the laws and regulations of our country are analyzed,to derive the liquidated damages should be considered according to the principles of justice and the exercise of discretion should be to control elements.With the analysis of a large number of case data of judicial judgment,often find problems in the judicial practice,and analyze the causes of this contradiction,write behind contradiction,to confirm the liquidated damages shall establish punitive and compensatory nature of the two to make adjustments,should be reasonable to improve the liquidated damages' adjustment system,the judgment standard of burden of proof distribution of content.The author believes that in the fully guarantee the freedom of contract,guarantee the justice of contract,shall be controlled and orderly for breach of rights reserved judicial intervention,through analysis of the judicial case,the source of theory to find the difference of the referee chaos appears,put forward the necessity of theoretical research on the system of default the gold adjustment suggestions from the legal research theoretical basis for the adjustment of the penalty system to be deepened,and each dimension from further standardize the judicial adjudication of the improvement of legislation,unified standards applicable to the system,to ensure that the interests of all parties in the process of performing contract in our country will be protected.