| The limitation of the liquidated damages containing the party’s autonomy of will can be found in the vertical and horizontal dimensions of the development of the liquidated damages system.In modern times,the rule of judicial reduction is an important part of the civil law system concerning the system of liquidated damages.This rule aims to avoid excessive squeezing of party autonomy and even devouring the substantial fairness and justice of the contract.However,the application of this rule in judicial trials may have the suspicion of excessive interference in the autonomy of the parties to the contract.So this rule needs rational examination and reasonable interpretation.This paper discusses the special rules of judicial reduction in the system of liquidated damages,which is based on the differences between the existing theories and practice on the nature of liquidated damages.The connotation of the function of liquidated damages is re-positioned after reaffirming the fundamental nature of the liquidated damages is "predetermined".Considering that the Draft of Civil Code does not amend the original legislation of the former liquidated damages system,the author abandons the method of constructing different types of liquidated damages according to their function or nature and decides which is applicable of the rule of judicial reduction.At the same time,this paper tries to discuss the application of the rule of judicial reduction by the dual function of liquidated damages,which aims to promote a correct understanding and proper application of the rule.In principle,there is no discussion of how to design more reasonable rules of judicial reduction of liquidated damages or how to improve the existing norms of liquidated damages.In the first part,the author first points out that the existing theory of the nature of liquidated damages includes the " dual nature theory" and the "single nature theory" in theory and practice,which both are based on "compensatory as the principle and punitive as exception ",these theory not only misinterpret the nature of the theoretical liquidated damages,but also lead to the abnormal application of the rules of judicial reduction of the liquidated damages in China to some extent.In fact,the fundamentalcharacteristics of liquidated damages should be "pre-arranged".Based on the principle of autonomy of will,the author reiterates and emphasizes the fundamental characteristic of liquidated damages aims to emphasize the different purpose intention of the parties to the contract,that is,the different functions of liquidated damages should be fully respected.The fundamental characteristic of liquidated damages is the reason to generalize the function of liquidated damages separately.Since the fundamental characteristic of liquidated damages contains the meaning of "free choice of function ",how to locate and implement the function of liquidated damages and what’s the relation between it and the rule of judicial reduction of liquidated damages?In the second part,the author thinks that the pressure function and damage compensation function should be applied to the dual functions of liquidated damages,because the liquidated damages does not belong to the form of security and lack of the color of private penalty.It is better to replace the title of "guarantee function" or "punishment function" with "pressure function".The compensation function of liquidated damages also have the value of simplifying the procedure of damages suit,which is highlighted by its legislative system in our country’s system.But it is neither necessary nor possible to realize its dual function by type construction method.It is better to take the rule of judicial reduction of liquidated damages as the core of the regulation in the technical aspects of norms and the current state of legislation.The third part,The author points out that the abstract legal theory foundation of the rule of judicial reduction of liquidated damages mainly lies in avoiding the excessive erosion of the principle of autonomy of will to the substantive fairness of contract from the macroscopic level,and based on this jurisprudence,the rule should be mandatory and practiced under the valid and effective application of the liquidated damages clause in spite of the termination of the contract.The control of the amount of liquidated damages shall be based on the principle of non-discretionary reduction,reduction shall be the exception.If the liquidated damages are not paid voluntarily,the reduction rule may of course be applied again.However,the voluntary payment of liquidated damages can not be categorically denied the possibility of its reduction.Asfor the default deposit,the judicial reduction rule can be applied by analogy if it is in a similar unbalanced interest pattern with liquidated damages.In fourth part,the author makes a concrete analysis on the subject and the mode of practice as well as the proof of constituent elements mainly based on the right of reducing the liquidated damages.The court can only reduce the liquidated damages upon the application of the parties and interpret the reduction of liquidated damages on the basis of neutrality and impartiality,also,the judge can not apply the rules of proof negatively to judge whether the liquidated damages for breach of contract should be reduce.The most basic factor of measuring is the default damage,which should include expected benefits that can be used as the basis for the interpretation of the party’s meaning when considering the amount of liquidated damages,it is benefit to take the performance of both parties to the contract and the degree of fault of the parties into account for regulating the reduction of one performance and dealing with cases such as negligence and intentional breach of contract.The principles of equity and good faith facilitate linkages and interaction among the various measurement factors and communication between reduction rules and other norms.In the fifth part,this paper pays special attention to the practice of the rule of judicial reduction for liquidated damages of delay in payment based on the common application of the rules of judicial reduction of liquidated damages,the rule of the legal limit of interest and the rule of the legal penalty for delay.The rule of judicial reduction of liquidated damages should be applied within the annual interest rate of24% when reducing the liquidated damages for civil loan delay.As for the liquidated damages of non-civil loan delay which belongs to the delay of monetary liquidated damages,it is advisable to follow the original rule of judicial reduction of liquidated damages from the perspective of the pressure function of liquidated damages. |
