| The liquidated damages reduction rule plays an important role in preventing the breach of contract from being too high and making the parties to the contract provide judicial remedies when the rights and obligations of the parties are not equal,so as to protect the rights of the parties and maintain fairness and justice.The Civil Code contract series has continued this rule,but the judicial decision to apply Article 114,paragraph 2 of the Contract Law,is subject to the rule of penalties for liquidated damages,which has a significant impact on the parties’ autonomy.In the future,it should be restricted in the scope of application of the rule: First,the initiation of the penalty reduction rule should be strictly limited to the way the parties apply,that is,the parties should clearly propose that the breach of contract agreement is unreasonable or apply for a reduction,and should not expand the scope of the application,and regard the simple denial as a proposal;Second,the penalty reduction rule should not fall within the scope of the court’s interpretation,but if the court is still allowed to explain in the future,its starting method should be limited to the case where the applicant clearly proposes to the court that the breach of contract agreement is unreasonable or applies for discretionary reduction.If the client entrusts a lawyer,it should no longer be explained;Third,the time limit for the parties to apply for reduction should be limited.The court should not support the application after the second instance without applying in the first instance;Fourth,The penalty for penalty reduction is the right to sue,and the waived agreement is invalid,but if it is the breaching party that breaches the contract and exchanges for the observing party to continue to perform the contract,it should not be adjusted;Fifth,It should be recognized that commercial contracts are special compared to civil contracts.In principle,the liquidated damages stipulated in commercial contracts should not be reduced in principle,except those that jeopardize the business development of commercial entities;Sixth,in the distribution of the burden of proof,the liquidated damages should be provided by the liquidating party.The contractor will continue to provide evidence to prove the loss;Seventh,in terms of specific adjustments,the actual loss is an important measure of the penalty reduction rule,but it is not the only standard.The pressure tool and damage compensation function of the penalty system should also be reflected in the reduction. |
