Research On The Punitive Liquidated Damages

In 2015,in the event of“a wave of defaults in Shenzhen”,The lack of relief for the observant party,in this case,the application of punitive liquidated damages is a new idea,that is to say making a punishment in the contract to protect the right of the observant party in addition to the claims for damage.After the investigation of the legislation,theory,and judicial practice of this concept,fingding that the concept of punitive damages has a long history,nowadays,there are different destinies in the Anglo-American law system,the continental law system and China.If there is a claim of compensation and penalty for breach of contract.In the traditional,the law in the Anglo-American law system thinks the punitive damages is illegal;in the continental law system,the common view is that“the punitive liquidated damages is the principle,and the penalty also has its applicable space”;in China,the original economic contract law recognized punitive damages.However,with the development of contract law theory,the legislation of continental law system shows the tendency of weakening punitive damages,the Anglo-American legal system also has scholars advocate the application of punitive damages.In the current contract law of China,there is no explicit stipulation on punitive damages,and only the third paragraph of article 114 is regarded as the the stipulation of punitive damages.At the same time,the theoretical study of the current contract law in our country is not sure about some questions,such as: how to define punitive damages,whether punitive damages can be supported,especially in the case in addition to the delay in performance,how does punitive damages apply and adjust.In this case,the author tries to find a possibility,comb the case in the judicial to find out the answer.After sorting out the judicial cases,the author found that the court's ultimate supports or partial support is not a minority.After analyzing the cases and combine the current contract law theory,the author draws the following conclusions: Punitive damages are inherent in the penalty,in terms of the definition,in addition to actual loss,the liquidated damages paid by the breaching party are punitive damages;as for the question of whether punitive liquidated damages should be supported,the author thinks that supporting punitive damages has its legitimacy and necessary foundation,especially for the realization of the freedom of contract and maintenance of contract stability;in the specific application of punitive damages,theauthor thinks that punitive damages apply to all occasions,however,the specific applications may be appropriately limited;in the adjustment of punitive damages,the judges should be given greater powers,in particular,multiple criteria can be applied in certain cases,for example,if there is loss,“the contract has not fulfilled part of the amount ”(or the standard like it),“130% of actual loss”,these standards,as the upper limit,are more widely used in practice and are more acceptable in theory,In the absence of actual loss,it should also support punitive damages,but the upper limit should be bound,such as the standard of “no more than 20% of the main contract amount”.