On The Adjustment Of Liquidated Damages

Judicial adjustment in liquidated damages is an important system of judicial intervention to the parties of a contract,which embodies the principle of fairness and the principle of good faith.It has a significant impact on interests of contract parties because of its limitation to freedom of a contract.Therefore,the legislature should set rules carefully.At the mean time,the judicial authority should carefully consider various factors in explaining related terms.Research on Judicial Adjustment In Liquidated Damages aims at studying problems arising from the judicial adjustment,and put forward suggestions to perfect the system.This paper is divided into five main parts:The first part mainly expounds the nature of the liquidated damages.First of all,analyze the theory about the liquidated damages from academic circles in our country,then criticize three main points.In favor of the existence of punitive liquidated damages clause in the contract law in China.The importance of the punitive nature of liquidated damages should be valued.Second,this article disagrees that liquidated damages is defined as " To compensating for the primary,secondary to punitive".The liquidated damages are both punitive and compensatory without any inequality.Then analyze the nature of liquidated damages in other countries and regions.Put further demonstration to prove that how important to a contract is to be actual performed.And the recognition of the punitive nature of the liquidated damages is of great significance.Finally,set different rules to different kinds of liquidated damages in view of the significance of the nature of liquidated damages for the judicial adjustment.The second part mainly expounds the nature of the adjust right of liquidated damages.This right has been rarely discussed in academic circles,but it has great significance both in the liquidated damages system and the validity of some terms that contract parties made.This part analyzes three kinds of views in academic field.This article do support that the adjust right of liquidated damages is the right of formation through suit in nature.The third part mainly expounds the judicial adjustment standard of liquidated damages.Because of the great impact on both parties,the judicial adjust of liquidated damages should adhere to the guiding ideology of “To not adjust for the principle and to adjust for the exception”.The existing standards "30%" is misused in practice.And the paragraph 1 of article 29 in Contract Law Interpretation 2009 remains a lot of difficulties in performance.After analyzing the defects of existing adjustment standards,this article put forward different adjustment ways according to the nature of the liquidated damages.The fourth part mainly expounds the judicial adjust procedure of liquidated damages.The procedure should be filed by the parties because they are the best judges of their own interests.Of course the courts have no right to initiate the procedure.Given that some parties are lack of legal knowledge and action skills,the interpretation right of judges should be take full advantage of.The interpretation of a judge is not right or obligation,but the authority of the court.The clear nature of the interpretation plays an important guiding role,to better clarify the condition of the interpretation right,and take good care of the relationship between parties' right of disposing in civil litigation and judges' discretion,and the relationship between litigation justice and litigation efficiency.The fifth part mainly expounds the limit use of the adjustment of liquidated damages in certain situation.If the liquidated damages have already been paid,the judges should not apply the adjust procedure in order to follow the principle of good faith.And businessmen think more than judges when they decide the amount of liquidated damages.Judges should be so careful to adjust the amount of liquidated damages.Then if a debtor deliberately breach an obligation,the law will take into consideration and limit the adjustment of liquidated damages.