| Under the concept of the principle of freedom of contract,the appropriate reduction of liquidated damage is regarded as the rule that the law gives the judiciary the right to interfere with the autonomy of private law.the appropriate reduction of liquidated damage has the value of realizing fairness and justice,limiting the abuse of private law and eliminating the substantive inequality between the Litigants.Liquidated damage is a form of performance pressure for the debtor and a performance guarantee for the creditor.The guarantee of liquidated damage is the theoretical support for the source of discretionary liquidation of the appropriate reduction of liquidated damage.It lays a theoretical foundation for the discretionary reduction system,the appropriate reduction of liquidated damage's history is the history of the development of liquidated damage.the appropriate reduction of liquidated damage is more suitable to meet the constitutive requirements of “right of action of formation.” Compared with the “right of defense” and “right of request”.The discretionary power reduction is a change to the original contract,but the debtor cannot freely adjust the amount of liquidated damages.It should be reduced by the court or arbitration agency according to certain standards.Through the empirical analysis,it is found that the explosive growth of the cases of the appropriate reduction of liquidated damage and the high probability of reducing the discretionary gold,which is contrary to the connotation of the exception of the amount of the appropriate reduction of liquidated damage as the amount of the appropriate reduction of liquidated damage,this question should be solved.the appropriate reduction of liquidated damage in the current law has gone through more than 10 years of legislative exploration from 1999 to 2012.Although it has experienced many vicissitudes,it is still worthwhile to discuss in depth how to accurately grasp the elements of discretionary rules.Through the analysis of China's breach of the appropriate reduction of liquidated damage in past and present lives,China's existing law in the breach of contract rules of the right to reduce the rules of the norms group,the interpretation of the current legal norms can be seen,in the starting mode of breach of contract discretionary reduction,the judge's interpretation of the right The difference between the two application modes of the parties' application and this situation makes it possible to reduce the starting mode of the case in China.In the burden of proof,not only should the defaulting party be required to bear the burden of proof that the amount of liquidated damage is excessively high,but also the observant must bear the burden of establishing that the amount of breach of contract is reasonable;There is a dispute over compensation liquidated damages and punitive liquidated damages in the applicable objects of the appropriate reduction of liquidated damage.In the case where the nature of liquidated damages is not defined in our country's legislation,both types of liquidated damages apply to discretionary reduction rules.It is more appropriate;between the guarantee function of the contractual penalty,it is possible to apply the penalty in the absence of loss,and it is reasonable for the defaulting party to apply for a reduction.In order to respect the freedom of contract,we should uphold the principle of the appropriate reduction of liquidated damage,but since the judgment of whether the appropriate reduction of liquidated damage need to be reduced or not is a legal issue,whether or not there is a need to reduce the amount of waste is still a prerequisite for the reduction rules.The discretionary factors set out in Article 29 of the Judicial Interpretation of the Contract Law(II)are of crucial importance.In our country's breach of the appropriate reduction of liquidated damage dynamic specification system,The various considerations are not split but linked,"actual losses" and "losses caused" are the same understanding;expected benefits play a role in supplementing actual losses;There is a positive correlation between the extent of contract performance and the extent of discretionary reduction,and there is a negative correlation between the degree of negligence of the parties and the margin of discretion,Combine actual losses with expected benefits;contract performance is linked with negligence of the parties,and the complex reduction criteria are reduced to two-part linkage criteria.Excluding the intentional defaulter's discretionary claims is due to efficiency and economic considerations,and the rules of contributory negligence can be used;The 30% ratio is not a discretionary rigid standard,but a comprehensive consideration of the above factors as a standard assistant for judges;the principle of fairness is the value pursuit and guiding standards of the defaulting gold.The principle of honesty and credit is shown as the "ex post guidance" of the defaulting gold,and the two parties run through the whole process of defaulting gold at the discretion of the first one.We pursue the legislative idea of the civil and commercial unity,but it has the possibility that the civil and businessmen can distinguish between the appropriate reduction of liquidated damage,the distinction between the unilateral business and the commercial conduct of the two parties is feasible,and “the false compensation of ten "is the distinction between the civil and businessmen of the breach of contract.On the basis of this,in principle,the court should not support the business subject of the court as the breach of contract for the breach of contract,but it may give up the discretion to the Party of the commercial subject of the two parties in advance,and in the case of the protection of the civil owner in the unilateral business,the court shall not do so.As a breach of contract,the holder should pay a discretionary request for the appropriate reduction of liquidated damage,and the discretion of the civil subject as a breach party should be carefully measured. |
PDF Full Text Request