Research On The Adjustment Of Liquidated Damages

The system of liquidation adjustment means that the amount of the liquidated damages agreed upon by the parties to the contract is higher or lower than the losses caused by the default,and the application of the other party is dealt with by the court or the arbitration institution if it needs to adjust or the range of adjustment.However,the reflection of the important system in the legal norm of our country is in excess of generality,and lack of adaptability.The controversy and confusion of the specific legal system derives from the weakness and the lack of the theoretical system.This article is based on the clarification of the basic theory of liquidated damages to discuss and clarify the adjustment of the rules of liquidated damages.The full article is divided into four parts:The first part mainly researches the essence and type of liquidated damages.First,it is clear that the essence of liquidated damages is a form of civil liability which does not belong to the guarantee of the debt.On this basis,liquidated damages can be categorized into compensatory liquidated damages and punitive liquidated damages.The Contract Law of PRC takes the compensatory liquidated damages as principle,and the punitive damages as exception.In practice,and it should adhere to the standard of “damages preset”,under the premise that the intention of parties is taken to full consideration,to determine the essence of liquidated damages.The second part is about the basic theory of adjustment.First of all,it provides a solid legal basis for liquidated damages,it should be acknowledged that damage is not only to ensure the freedom of contract and the need for justice,but also the inner requirement of the essence of the liquidated damages,and the embodiment of the principle of good faith.Subsequently,the essence of right of the adjustment of the liquidated damages should be clarified to a kind of right of action of formation.Finally,it is important to emphasize that adjusting the cautious intervention principles and predictability principles should be followed during the process of the adjustment of the liquidated damages.The third part mainly discusses the substantive problem in the adjustment rules of the liquidated damages.First of all,it discusses the factors that should be taken into account when judging and adjusting the amount of liquidated damages,then establishes the standard of taking other factors in the consideration on the basis of actual loss.Secondly,it discusses the applicable problems about adjusting the standard of punitive liquidated damages and the compensatory liquidated damages with below losses,emphasizes that the adjustment of punitive liquidated damages should focus on the investigation of the subjective fault of the defaulting party.On the condition that the amount of liquidated damages is lower than the loss,the observant party may apply the increase of amount liquidated damages,while the action of requesting the compensation for damages is not allowed.The fourth part is the construction of the procedure of the adjustment of liquidated damages.First of all,it clarifies that the right of launch can only be carried out by parties,it is forbidden for court to adjust without the request by parties,then discusses the processing mode to the liquidated damages' application raising by the parties in the second instance.Secondly,in order to improve the efficiency of litigation and ensure substantive justice,it discusses the rationality of giving the judge the right of interpretation within a certain limit.Finally,it illustrates that the burden of proof should be taken by the party who has requested the adjustment of the liquidated damages,which can not be transferred.If it is definitely hard to quote for parties,it will be applicable for court to gather the evidence instead.