Study On The System Of Liquidated Damage

There are many cases about reducing the liquidatied damages.But our law and academic research on reducing liquidatied damages are still to be improved,so reducing liquidatied damages has met some difficulties in judicial practice.Basd on which,this paper aims to study the princile,the pattern of starting,the burden of proof and the highest criteria of liquidatied damages.Besides of introduction and conclusion,this paper is divided into six parts,a total of six parts' main elements of principal argument are as follows:The first part focuses on the main problems of reducing liquidatied damages in judical practice.With enough investigation into the cases,we can easily find that the courts judge whoever takes the burden of proof based on the specific facts,and rigidly use the law---liquidatied damages more than thirty percent of the damage can generally be identifide as too high.Apart from that,the court even takes it as the criteria of reducing liquidatied damages.All these lead to the phenomenon of the same case with different judgements.As foe the question of reducing range,the judges can be divided into five sorts,but they lack the support of theory.The second part mainly talks about the basic theory of reducing liquidatied damages.It is based on the study of the history.This part identifies the basic principal and the object.This paper thinks that reducing liquidatied damage is the result of principle of autonomy game with Principle of justice,and can not violate the principle of public order and good social customs.Defining punitive liquidatied damage and compensate liquidatied damage and having a objective and systematic explanation in exisiting law,the paper consider that the object of reducing liquidatied damage includes damage compensation calculation and punitive liquidatied damage.The third part is centered on the boot mode of reducing liquidatied damage.Comparing the continental law system with Anglo-American law system,there are two modes-the court starting with the authority and the parties applying.China adopts the mode of the parties.The paper considers that because of the uneven judicial personnel quality,the mode of the parties applying can urge the parties to maintain their interests and prevent the judge abuse of the judicial jurisdiction.At the same time,because there may be the question that the parties don't know they can apply reducing liquidatied damages,because of lack of legal consciousness,the law should allow the judge to explain under certain conditions.The fourth part explains the burden of proof of reducing liquidatied damage.The cases in the first part indicates that the courts don't have the same understanding on the question that who take the burden of proof.The paper considers that the objective burden of proof is sure,but the subjective burden of proof can change with the facts.The debtor apply for reduction of penalty due to breach of contract,according to the theory of "specification" and the changes shall be made by the legal relation of party bear the burden of proof designing rules,liquidated damages reduction objective burden of proof shall be borne by the debtor,subjective burden of proof can be made of the judge discretion on the basis of the condition of the case.The fifth part mainly discusses the standards of judging the higher liquidated damages.Judgment standards include standard and secondary standard,the standard is based on the actual loss,both of the execution of the contract,the degree of fault and the expected benefits comprehensive factors such as measure,auxiliary standard losses are more than 30% of the general can be thought of penalty due to breach of contract is too high.This paper argues that: "losses" and the actual losses should not adopt the same meaning,30% of the standard is not reasonable,excessive decide whether liquidated damages in the judicial practice should be comprehensive measure of various factors.The sixth part discusses the reduce of the liquidated damage.In judicial practice,the same case of two instance verdict sometimes appears with bigger difference,and the court's decision reasoning is insufficient,the result of which is often difficult to convince the parties,leading to the parties to appeal,or even apply for retrial,which increase the cost of dispute resolution.Cases can be divided into money payment case and none-money-to-pay-case reduction.Money payment case is divided into lending case.In borrowing disputes,liquidated damages should be restricted by related legal interest rate caps,not money to pay case,the amount of liquidated damages shall be specific concrete analysis case,but in any case,the judge he who should be adequately in the penalty due to breach of contract is liable.