A Case Study Of The Judicial Discretion Rules For Liquidated Damages

The rule of reduction of liquidated damages is generated in order tosolveexcessive liquidated damages,which is widely used in judicial practice.The system of reduction of liquidated damages involves many procedural and substantive issues,including the starting mode,the interpretation of the court,the measures of reduction,the burden of proof of the parties,etc.Therefore,it is necessary to analyze and summarize the cases of the rule of reduction of liquidated damages in judicial practice by case study,and to explore the application ofreduction system in judicial practice.This article analyzes the procedural and substantive issuesinvolved in the rule of judicial reduction of liquidated damages from two aspects including theory and practice by using positivism analysis method,which divides into the following parts.The first part introduces the applicable object of the rule of judicial reduction ofliquidated damages,starting from the academicdiscussion of the nature of liquidated damages,through research of practical cases,which is to illustrate that the rule of reduction of liquidated damages is applicable to not only compensatory liquidated damages,but also punitive liquidated damages.The second partmainly introduces the procedural issues ofrules of reduction of liquidated damages,and introduces two different starting modes of judicial reduction,that is,the parties start with application and the court starts with authority.Starting from the case of judicial practice and combining with the legislative practice,this paper explores that the starting mode of the rule of reduction in our country is the one based on the application of the parties.It analyzes that under the current start-up mode with the parties' application In order to balance the parties' freedom of intention andsubstantive fairness,the judge interpretation reduction rule stipulated by our country's legislation has its legitimacy.It also explores the disputes of judge interpretation existed in the judicial practice through analysis and comparison of the case.The third partrefines the factors measuring whether the liquidated damages are reduced and how to reduce in the justice practice,and concludes the consideration factors on the basis of actual loss,subjective and objective situation of the parties,principles of fairness,honesty and credit through judicial case of comparative analysis.On the basis of case study,more specific factors are refined from eachconsideration factor,and the application of legislative provisions in specific cases is observed,the differences of different case factors are analyzed and compared,and the judicial gist of court in the case of reduction of liquidated damages is explored.The fourth part discusses the judgment time point of the rule of judicial reduction of liquidated damages,analyzes and compares the different viewpoints existing in the academic circles at present.For the allocation of the burden of proof in the rules of judicial reduction,the author explores the problems existing in the allocation of the burden of proof in the rule of reduction of liquidated damages in judicial practice,combining with current legal norm and judicial practice through analyzing and comparing the case.