On Rules Of Adjusting The Agreed Too High Liquidated Damages

According to analyses on the trial cases of agreeing too high liquidated damages in judicial judgment practices among various areas in our country?region?,it can be seen that different judgments are made for a same case fact.Our laws' fuzzy provisions on the adjustment of liquidated damages lead to no clear guidance for the implementation of judicial judgment.With the development of market economy and the increasing diversities of economic activities,the complete and new types of contracts emerge in endlessly.There are also a variety of provisions on the agreement of liquidated damages.Many contract parties agree outrageous liquidated damages when signing contract.Agreeing liquidated damages is surely permitted by law,and reflects the freedom of contract and the autonomy of will.However,agreeing too high liquidated damages,notwithstanding the contract parties' will it may be,seems to infringe the good custom if directly apply the agreement of too high liquidated damages without regard to the objective factors in case of default.This also goes against the principle of change of circumstances in our laws.As for the adjustment of liquidated damages,there are a lot of differences among the provisions of each country,and the opinions of theorists on the adjustment of too high liquidated damages are also different and there is no consensus,which leaves spaces for the theoretical research.However,the juridical practices face with a lot of difficulties.It can be found to be evident through observing the precedents of juridical practices in our country.The agreement of too high liquidated damages will cause imbalance of benefits of the contract parties.The absolute principle of freedom of contract is a form of completely dependence on the market regulation.While the blindness and other disadvantages of the market regulation make it impossible to realize the fairness of contract.Consideration of appropriate juridical adjustment is desperately needed.Otherwise,the real contract justice cannot be realized.Moreover,no normative legal order can be provided for economic activities.This thesis takes Article 114 of Contract Law as the entry point for discussion,make analysis from the perspective of comparison method,and points out the issues desperately needed to be solved in the adjustment of too high liquidated damages combining the juridical practices.Except for Introduction and Conclusion,the main body includes four chapters:Chapter I describes the status quo of the liquidated damages theory and the current legal provisions.The first two sections highlight the concept and types of liquidated damages.There are various provisions for the liquidated damages concept,but they are differing only on small points.The types of liquidated damages are discussed from the perspective of the nature and causes of liquidated damages.Through classifying the liquidated damages,the liquidated damages can be better understood and applied.Section 3 focuses on analyzing the current legal provisions on liquidated damages.Analyzing the current legal provisions on liquidated damages can facilitate the discussion of adjustment and research of liquidated damages.Chapter II describes the adjustment rules of liquidated damages from the perspective of comparison method.Firstly,it analyzes the provisions of German Law on the liquidated damages.The profound influence on our civil law of the solid theoretical foundation of Germany civil law is undeniable.Therefore,analyzing the provisions of German Law on the liquidated damages is of much more theoretical significance.Secondly,a comparative analysis is carried out for the legal provisions on liquidated damages of France and Japan.Finally,I analyze the legal provisions on adjustment of liquidated damages in Taiwan,and combine the local trial cases.Through the comparative analysis,the theoretical differences are perfected,so as to better guide the practices and make up the deficiencies in practice.Chapter III analyzes the adjustment of too high liquidated damages from the perspective of applicable important documents,the cases in juridical practices with examples.It takes the cases as entry points to focus on the analysis on the applicable criteria of liquidated damages adjustment,the application of starting mode of liquidated damages adjustment,and the determination of statute of limitations of liquidated damages.Although these three chapters do not cover all of the liquidated damage adjustment issue,they are the most common issues in juridical judgment.Through analyzing the precedents,the application of liquidated damage adjustment and the existing issues can be more visually displayed,so as to explore the solutions to the issues.The premise of adjusting too high liquidated damages is that there are conditions which meet the adjustment requirements.Therefore,important documents shall be analyzed.This is the key to correctly apply the liquidated damages adjustment,and is an important step to perfect the system of adjusting too high liquidated damages.