Study On The Legal Regulation Of The Construction Of Cruise Homeport In China

The penalty for liquidated damages has many controversies in both academia and judicial practice.The most common issue is whether the liquidated damages agreed upon by the parties meet the criteria that should be reduced,and how much the liquidated damages are reduced.The problem.Although Article 114 of the "Contract Law" in China and Article 29 of the "Contract Law Interpretation(?)" all make relevant provisions on the penalty for liquidated damages,the deviation in understanding the contents of the legal rules is also used in judicial practice.Variety.The first part is the basic theory of discretionary reduction of liquidated damages,that is,the study of the justification of liquidated damages and the nature of liquidated damages.First of all,the justification for the reduction of liquidated damages is the principle of fairness,the principle of good faith,and the principle of autonomy of will.Secondly,the nature of the liquidated damages is the premise of the application of the fines for liquidated damages.From the perspective of comparative law,civil law systems represented by Germany and France recognize the dual nature of compensatory and punitive damages;and the Anglo-American legal system Only recognize the compensation of liquidated damages,negating the penalty of liquidated damages.China's legislation does not clearly stipulate the types of liquidated damages.There are four theoretical doctrines for the nature of liquidated damages in the theoretical community.The judiciary does not specify the specific meaning of"retribution-based,punitive,and supplementary".Differences.The object of the final liquidation of fines for breach of contract does not include "the amount of damages for the agreed calculation method" and "the liquidated damages that the debtor has voluntarily paid."The second part is mainly about the problems and status quo of the penalty reduction rule.First of all,the root cause of the problem of the penalty for liquidated damages lies in the weakness of the theoretical basis for the reduction of liquidated damages."The root is strong and the stability is good",and the theoretical basis of the penalty for liquidated damages is the nature of the penalty.The nature of the liquidated damages in China is still at the level of vagueness.The academic community generally agrees with the "double nature of compensation and punishment",but the understanding of dual attributes is very different,leading to doubts about the application of liquidated damages.Secondly,if the liquidated damages agreement is too high,the relationship between "actual losses" and "caused losses" is not clear.Whether punitive liquidated damages and compensatory liquidated damages are applicable to Article 29 of the "Explanation of Contract Law(?)" on the reduction of liquidated damages Provisions?It is also a difficult problem in the judicial practice as to how to apply the comprehensive consideration of the penalty for discretionary reduction in Article 29 of the Interpretation of Contract Law(?).There are also many problems with the liquidated damages reduction procedure and the procedures for the allocation of burden of proof.The third part focuses on the shortages and problems of discretionary reduction of liquidated damages,finding solutions and improving the system of fines for breach of contract.Explain the contingency of liquidated damages stipulated in Article 29 of the "Contract Law Interpretation(?)",reduce the start-up procedure of excessive liquidated damages,and how the court reasonably exercise its right of interpretation,with reference to other countries or regions.Relevant laws and regulations provide suggestions for supplementing and perfecting the legal system that is not clearly defined in our country.We will analyze and grasp specific issues in the penalty reduction rules for breach of contract.