Research On The Adjustment Rules Of Liquidated Damages

The autonomy of private law is one of the core values of civil law,specifically in the field of contract law,it is manifested in the establishment and implementation of the principle of freedom of contract,the parties have the right to choose and decide whether to enter into a contract,with whom,and the content of the contract,etc.matter.The contractual relationship formed by the parties through will autonomy is binding on each other,and both parties to the contract shall perform the contract in accordance with the principle of good faith.When a party violates the contents of the contract,the state has established a corresponding breach of contract relief mechanism through law,including a liability system for breach of contract.Liquidated damages,as one of the ways to bear the liability for breach of contract,have been widely used in practice and exposed the shortcomings of its system.Therefore,the intervention of the judiciary is required to adjust the liquidated damages.Although legislative and judicial interpretations have established and developed many normative elements of liquidated damages adjustment rules,but in practice there are still inconsistencies in liquidated damages adjustment rules,and there is an urgent need to develop a set of effective liquidated damages adjustment rules.At first,this thesis illustrates the basic concept of liquidated damages adjustment system,and introduces the basic content of liquidated damages system,and emphasizes the necessity of adjusting liquidated damages and the legitimacy foundation.The liquidated damages are pre-determined payments by the parties through agreement and are independent of performance after the breach takes effect.The academic community in China believes that liquidated damages have the dual nature of compensation and punishment,as well as the dual functions of guarantee and damages.In order to show the contract justice in the freedom of contract,balance the interests of the parties to achieve the requirements of fair transactions and the characteristics of liquidated damages,it is necessary to make judicial adjustments to the liquidated damages.The parties must uphold the principle when entering into contracts and the judicial authorities adjusting the liquidated damages.Secondly,this thesis expounds the application of liquidated damages adjustment,and deepens the basic research on liquidated damages adjustment rules from the applicable conditions and influencing factors.Conditions for adjusting liquidated damages include breach of contract between the parties,liquidated damage clauses agreed in the contract,and liquidated damages "too much above" or "below" the losses caused by the liquidated damages.The party shall take the initiative to apply to the judicial authorities for the adjustment of liquidated damages.The degree of default damage,the defaulting party's fault,and causal factors will all affect the adjustment of liquidated damages.Thirdly,it analyzes the shortcomings of China's liquidated damages adjustment rules in terms of adjustment objects,adjustment standards,and power exercise.In terms of adjustment objects,the court did not distinguish between adjustments for punitive damages and compensatory damages,and did not treat civil and commercial contracts differently;in terms of adjustment standards,the classification and scope of"losses" were mainly unclear and "discretionary".There is a problem with the unequalities of "adjustment of increase" and liquidated damages on a daily basis;in addition,the parties have disputes on the duration and method of exercising the liquidated damages adjustment right;the court also revealed the system's deficiencies in the procedural arrangements The judge did not exercise the right of interpretation correctly or adjusted the penalty for breach of contract without the party's application due to "fairness and justice" Due to the complexity and diversity of the cases,there are often inconsistencies in the allocation of the burden of proof by the judge.Finally,on the basis of synthesizing our country's liquidated damages system,it puts forward suggestions for the improvement of China's liquidated damages adjustment rules according to the above problems.Specifically,the judiciary needs to clarify the adjustment.object of the liquidated damages,determine the adjustment standard of the liquidated damages,and improve the exercise of the parties' rights and court procedures.Through the continuous improvement and development of liquidated damages adjustment rules,in order to clear up the vague understanding and inaccuracies in the liquidated damages adjustment process,and establish a unified standard for the liquidated damages adjustment rules,so that in judicial practice,the court or arbitration institution can exercise the discretion more uniformly and ensure that the rights of the parties are more fairly and justly guaranteed.