Penalty Due To Breach Of Contract To Adjust The Rules Of Judicial Application Research

Our country "contract law" the 114 th regulation the penalty due to breach of contract rules have been changed,but the theoretical circle and judicial practice of the ICC rules to understand and apply there has always been controversial.Although the "contract law judicial interpretation(2)" to "contract law" article 114 liquidated damages too high fine the change rules of the judgment standard,for more than 30% of the actual loss as a standard,also asked the court based on the actual loss,both of the execution of the contract,the parties,the degree of fault,and the comprehensive factors such as expected benefits,according to the fair principle and the principle of good faith to be measured,and make a decision.But due to objective reasons such as imperfect legislation technology,the "actual losses" how to calculate is involved,the nature of the liquidated damages,the judge interpretation right and distribution of proof and a series of problems,and judge value judgment in the subjective existence very big difference,which results in the practical operation in the contract law explanation(2)of article 29 as the basis of decision will exist different connection phenomenon.Academics and practice,for the purpose of a correct understanding and applicable law from the Angle of different penalty due to breach of contract adjustment rules to make the beneficial discussion,can explain the problem of maintaining trading order,balance interest loss and promote the development of contract freedom is of great significance.Based on the penalty due to breach of contract adjustment rules of judicial application for center study,on the basis of existing research results,hot problems in to practice for specimens,hope promote the study of penalty due to breach of contract rules have been changed.The article has six parts except introduction.The first part is the nature of the breach of contract.Contains the function of the penalty due to breach of contract and the nature of the "contract law" article 114 liquidated damages the contents of two parts,through to the distinction between the penalty function,this paper argues that China's "contract law" the 114 th regulation of penalty due to breach of contract is a double attribute and punitive compensation.The second part adjust the rules of applicable object for breach of contract.Based on the penalty due to breach of contract in our country,the characteristics of both punitive damages and legal penalty due to breach of contract,this paper argues that China's liquidated damages compensation for breach of contract and punitive penalty due to breach of contract can be adjusted to apply the liquidated damages clause rules.The third part adjust the rules applicable condition problem for breach of contract.This paper argues that our country's penalty due to breach of contract adjustment rules applicable to the several conditions: shall be a liquidated damages clause is legal;the second is penalty due to breach of contract to be binding;Three is the amount of liquidated damages for adjusting continue to exist;Four is shall be made in a reasonable way;Five is to adjust the request in the correct period is put forward.The fourth part is the high amount of liquidated damages judgment basis and adjust the standard.On the judgment of the amount of liquidated damages is too high,this paper argues that "loss" is the key to judge the amount of liquidated damages high and low,the loss of here include all the actual loss and expected benefits;On the adjustment of standard,this paper argues that determine a fixed adjustment standards do not conform to the reality,in the existing laws and regulations under the premise of the judge to the intervention with caution as the principle,the use of reasonable discretion,consider the case of situations to make comprehensive adjust the amount of liquidated damages.The fifth part adjust the claim case for giving up the amount of liquidated damages in advance of judicial application problems.Based on the theory and practice on this issue,it is concluded that the parties have the right to claim liquidated damages amount adjustment in nature belongs to civil rights,the parties agreed in advance to give up the terms of the right to claim liquidated damages amount adjustment effectively,the parties may preclude penalty due to breach of contract adjustment rules applicable in the transaction.The sixth divided into penalty due to breach of contract adjustment rules of judicial application of right of interpretation of the Ming and the study of distribution of evidential burden of the judge.In the penalty due to breach of contract adjustment case,the judge should take the judge's interpretation right of Ming,the parties to the court did not request the general shi Ming will be made to the parties,but in some special cases,the problem of breach of contract allows the judge cohabitancy;In the burden of proof allocation,the judge shall judge skills,flexible use of reasonable allocation of the burden of proof between the parties,the realization of entity justice and result justice.