The Judicial Adjustment Of Liquidated Damages

The liquidated damages is one of the basic forms of liability in the field of contract.The law of our country allows the parties to agree on a certain amount of liquidated damages when they conclude the contract.The parties may request the people's court to adjust the amount of liquidated damages if the amount of liquidated damages is too lower or higher.The provisions of the system are too vague,which makes the procedural issues about the nature of liquidated damages,the measurement factors and the judicial adjustment of liquidated damages in practice constantly controversial,so that the application scale of legal provisions in judicial practice is different.This paper discusses and clarifies the system of adjustment of liquidated damages on the basis of clarifying the basic theory of liquidated damages,which is divided into four parts:The first part mainly makes clear the basic concept of the judicial adjustment of liquidated damages and liquidated damages,and makes it clear that the liquidated damages in the contract law of our country should be mainly compensatory and punitive,thus extending the basis of judicial adjustment and the principles should be followed,providing a legitimate basis for the judicature to adjust the liquidated damages.The second part is the regulation of the judicial adjustment of the liquidated damages,from the entity and procedure to regulate the system of judicial adjustment of the liquidated damages,starting mode is mainly party claims,and not limited to express the meaning of the way,but also should not exclude the jurisdiction of the judicial organs directly judicial adjustment.When adjusting the liquidated damages,the people's court should consider comprehensively the factors of actual losses,the degree of fault of the parties,the performance of the contract and the expected interests.The third part reveals the problems existing in the adjustment of liquidated damages in China,the insufficient understanding of the value of liquidated damages,the unreasonable of judge the excessive standard of punitive liquidated damages deviation from the setting purpose of liquidated damages of different nature,the unclear distribution of the burden of proof leads to different judgment results,the different judgment methods when the actual loss can not be proved,the unclear judgment point of measuring factors makes the expected interests of the parties impossible to achieve,and so on,which makes the fairness and justice difficult to achieve.The fourth part is the solution to the problems existing in the adjustment of our country's liquidated damages,In order to solve the above problems,we should first give the correct guide to the pursuit of the value of the liquidated damages.The value of the liquidated damages is to balance the interests between the parties and promote the realization of the freedom and justice of the contract.The maximum amount of punitive damages shall be set by reference to other relevant legal provisions and shall be protected not more than 20%of the total contract value on the basis of respecting the agreed amount of the parties,Creditors should also be given protection of their interests in the absence of actual loss or uncertainty of actual loss.Money-based debt taking into account the use of funds reference the rates for private lending,and non-money-based debt is adjusted according to the amount of the contract.Reasonable allocation of the burden of proof and timing of judgement as measured by pre-end of the court debate.