Study On Judicial Application Of Adjustment Rules Of Contract Breach Fee In Commercial Housing Sale

At present,the commercial housing market is booming.As one of the means to establish,change and eliminate the legal relationship between the parties,sales play a very important role in the development of the commodity economy.However,due to subjective and objective factors,the sales contract may not be effectively performed after it is established and becomes effective.In order to ensure the performance of the main contract in accordance with the contract,the agreed penalty arises at the historic moment.In addition,the commercial housing sales contract has certain particularity compared with the general commercial housing sales contract,thus causing the judicial application of the agreed penalty adjustment rules in the commercial housing sales.In the theoretical research,the understanding of the agreed penalty for breach of contract in the sale of commercial housing has not reached a unified consensus,and the handling is more mechanized in the application of the judicial adjustment rules for the agreed penalty for breach of contract in the sale of commercial housing.Because the law has not yet made very clear and specific provisions,and the relevant judicial interpretation provisions are not detailed and specific enough,it is difficult for judges to use their discretion to adjust the liquidated damages agreed upon in the sale of commercial housing.In judicial practice,due to the vagueness of the legal provisions,there is no clear applicable method for the relevant provisions of the liquidated damages system,and judicial organs around the country have different judgments for the same case according to their respective understandings.In view of the above-mentioned problems,this article takes the current laws and regulations of our country as the starting point,uses the methods of comparison,enumeration and analysis,and through comparing the provisions on liquidated damages adjustment between China and foreign countries,and referring to the current research background,social needs and the national conditions of our country,puts forward innovative opinions for the judicial application of the agreed liquidated damages adjustment rules in the sale of commercial housing.This article holds that there are still some deficiencies in the judicial application of the agreed penalty adjustment in commercial housing sales in our country's current judicial practice.The provisions of relevant laws are relatively rough,which makes some theories related to penalty still remain at the theoretical level and are not reflected in the legal provisions.The lack of detailed provisions results in the judges' greater discretion in the judicial application of laws.The law stipulates that the starting standard for using discretion to adjust the liquidated damages is "the amount of the liquidated damages exceeds 30% of the actual losses caused by the breach of contract".The regulation emphasizes the actual losses and lacks consideration of factors such as the subjective purpose of signing the liquidated damages whenthe parties purchase commercial housing.There is still room for improvement and perfection in the legislative and judicial application of this one-size-fits-all adjustment method.In terms of legislation,the relevant laws and regulations concerning the judicial adjustment of liquidated damages in the sale of commercial housing should be more detailed.In the judicial aspect,when applying the existing adjustment rules,the subjective purpose of the parties and other factors can be properly considered.So as to better realize the balance of individual cases and make each case get a more reasonable judgment.