On The Judicial Discretion Of Contract Liquidated Damages

The reduction of judicial penalty is a system when liquidated damages is agreed much higher than the actual loss by the two parties,the defaulting party requests the court or arbitration institution to reduce the amount of liquidated damages.As a form of liability for breach of contract,liquidated damages has effects on filling damages,supervising the performance of the contact and etc.,it can also replace damages in breach of contract to avoid troubles of proof,so more and more people are willing to agree liquidated damages at the same time of making a contract.But sometimes the amount of liquidated damages may be prescribed exceeds the loss resulting from the breach,defaulting party can request jurisdiction to intervene to protect his legitimate rights and interests.At present the reduction of judicial penalty in our country has many questions on legislation,program operation and entity structure yet,so there are many troubles in judicial practice.This article will analyze the existing problems of the reduction of judicial penalty based on researching on cases,and offer some solutions to perfect the reduction of judicial penalty combined with the foreign experiences.This paper is divided into introduction,body and conclusion.In the introduction,the author starts from the current situation of the reduction of judicial penalty,stating the troubles in judicial practices because of legislative defects in order to explain that it has practical significance to study this problem.The main body is divided into four chapters.Chapter one introduce two cases in judicial practice,and analyze their processing methods so that I can make a conclusion that the reduction of judicial penalty has many questions in legislation,program operation and entity structure,this is starting point and foundation of this article.Chapter two mainly introduces the theoretical basis of the reduction of judicial penalty,including: principles and consideration factors.Chapter three unscrambles legal provisions of civil law countries and Common law countries concerning the reduction of judicial penalty so as to get enlightenment by studying comparatively.Chapter four puts up some suggestions to perfect the reduction of judicial penalty based on the analysis noted above,containing distinguishing the types of liquidated damages,starting process and distribution of burden of proof,reference factors and criterion for judgement.The final conclusion part is a summary of the full text.