On The Adjustment Of Liquidated Damages

There is a long history about the Fine for breach of contract system,and the perspectives about its nature is quite varied at home and abroad.The Fine for breach of contract system is divided into liquidated damages and legal penalty due to breach of contract.The court and arbitral institution have no rights to intervene the latter one,but the fomer one is reached by the parties what is the product of party autonomy.How to protect the the lawful rights and interests of the parties and maintain a fair and just rule of law environment when disputes occurred?It needs the judge to adjust the liquidated damages by law and reasons.Judge should appropriate intervention,exert discretion,according to the actual loss amount and comprehensive consideration of various factors to adjust the amount of liquidated damages.This paper uses the comparative analysis method,found from the trial practice that the existing problems of liquidated damages'adjustment,through case analysis to explore the penalty adjustment rules,put forward the adjustment of the penalty applicable measures to the people's court can provide more reasonable and applicable rules of operation,promote social fairness and justice.Besides the foreword and conclusion,this article is divided into three chapters.The first chapter is about the introduction to the adjustment of liquidated damages.It is divided into three sections,the first section of the liquidated damages is based on breach of contract,which must first understand the nature of liquidated damages,states by contrast region outside the nature of liquidated damages;the second section expounds why to adjust the penalty,adjust its significance;the third section analyzes the default condition adjustment are gold namely,applicable conditions;the fourth section points out that penalty adjustment should be restricted,not random adjustment,the adjustment on the basis of the principle of.The second chapter is about the problems in the legislation and justice of the adjustment of liquidated damages.It is divided into four sections,the first section is about there is no clear provisions of how to use the exercise period of adjusting the claim for liquidated damages,and unable to determine in the trial;the second section describes that the penalty adjustment way is not clear;the third section describes there is provisions of how to define the default losses;the fourth section,in the case of contract dispute,about liability for breach of contract,the burden of proof of both parties is not clear.The third chapter is about the legislative and judicial recommendations for the adjustment of liquidated damages.In the light of discussing the issues raised in the second chapter,this chapter is divided into four sections,in the first section,it makes clear the time limit for the exercise of the request of the liquidated damages;the second section is about the court's active adjustment is a supplementary way to adjust the liquidated damages,analysis on the request of the parties as the main mode of the adjustment of the penalty by way of case;the third is about the way to identify the amount of loss;the fourth section defines the distribution of the burden of proof of the parties.Through the discussion of the above three chapter,the author first talks about the understanding the liquidated damages,then leading to the emergence of the legislation and the judicial system to adjust the existing problems,that is to analyze how the court or the arbitration institution to adjust the liquidated damages,and to draw the conclusion that the court or the arbitration institution should take the initiative to adjust the penalty for the breach of contract.