The Research Of Adjustment Rules Of Liquidated Damages

Late 19 th century,"German Civil Code" firstly made provision for liquidated damages adjustment system in the form of legislation,allowing justice to intervene liquidated damages clause under certain condition,which have made a significant impact on other civil law countries.Today,it has become a common practice to stipulate adjustment rules of liquidated damages.China's "Contract Law" Article 114 also builds this legal system,and the Supreme People's Court introduces judicial explanation with that.However,judicatory practice of this system is still at variance due to the macroscopic legal and judicial interpretation of the provisions.Different judges have different practice on the adjustment of liquidated damages,which makes both litigant parties feel confused.This paper is divided into three parts to study the adjustment rules of liquidated damages:The first part discusses the judicial practice of this legal system by summarizing judgments of the Court.Case cited herein and the data I concluded in this paper all comes from "http://www.pkulaw.cn/".I try to summarize the judges' attitude on this legal system and give a brief introduction of the judicial practice on it.In the second part,I emphasize on the problems in the adjustment rules of liquidated damages,and analyze the reasons of such problems.Since the liquidated damages are agreed by the both parties of the contract,and give expression to the principle of freedom of contract,what is the legal basis for adjustment rules of liquidated damages? How to determine liquidated damages are "excessively higher" than the lost? What is the meaning of "Appropriate reduction" of liquidated damages? Why the judges prefer to cite item 114,paragraph 3 in contract law than to cite item 114,paragraph 2? How to attribute the burden of proof? What is the start-up procedure of the liquidated damages adjustment system.The former two parts in this paper are to "ask questions" and "analyze the problem",and therefore the third part will be based on "problem solving".This part will give answers to the problems in legislation and judicial practice one to one raised in part two.