Research On The Adjustment Of Liquidated Damages

The issue of penalty adjustment plays a vital role in balancing benefits between two parties and safeguarding fairness of market transactions.Considering improving the prograss of panelty adjustment,this thesis attempts to explore problems of current situation of panelty adjustment in China and to provide relevant solutions to solve such problems.With the topic of “Research on Problems of Penalty Adjustment: A case study of Ningbo Construction counter-charing Zhejiang Geotechnical Foundation Company”,this thesis consists of four parts:Part ? introduces the background of the disputes of Ningbo Constuction counter-charging Zhejiang Geotechnical Foundation Company.First,this part analyzes the situation of this case.Second,it concludes divergent opinions among Zhejiang Geotecnical Foundation Company,court of first and second instance,and retrial court.Finally,according to the divergent opinions,this part points out the disputes during the progress of penalty adjustment.Part ? introduces relevant legal principals of penalty adjustment issues in this case.Firstly,this part introduces basic theories of penalty adjustment.Secondly,it introduces application conditions of penalty adjustment.Thirdly,this part illustrates reference factors of penalty adjustment.Finally,this part analyzes the distribution of persuasion burdens during the progress of penalty adjustment lawsuit.Part ? applies relevant legal principals to analyzes the disputes in this case.Further,this part draws conclusions: Zhejiang Geotechnical Foundation Company failed to deny to burden the penalty;Original trail court applied improper factors of reference in this case;Original trail court improperly distributed the burdens of persuasion in this case;Retrail court improperly adjusted the amount of penalty in this case.Part ? provides some suggestions to existing problems of penalty adjustment in China according to conclusions of case study.This part is the most important part in the whole thesis.Main suggestions are: The adjustment of compensatory penalty and punitive penalty should be different;The amount of punitive penalty should be defined;Various factors should be comprehensively considered when adjust penalty in cases with no actual loss;Burdens of persuasion should be properly distributed in lawsuit of penalty adjustment.