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On The Adjustment Of Liquidated Damages

Posted on:2021-03-19Degree:MasterType:Thesis
Country:ChinaCandidate:Y N XiangFull Text:PDF
GTID:2506306224952799Subject:Civil law
Abstract/Summary:PDF Full Text Request
For fair consideration,Article 114 of the Contract Law of the People’s Republic of China establishes a penalty adjustment rule,which is explained by the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Contract Law of the People’s Republic of China(2)Refine.However,because the norms are too abstract,in judicial practice,there are disputes about the applicable objects of the penalty adjustment rules and the distribution of the burden of proof that the penalty is too high,and there are problems such as inconsistent judgment standards and diversified judgment standards.Based on the relevant judgments,this article considers the problems in the judicial application of the penalty adjustment rule and provides some suggestions for the application of the rule.This article is divided into three parts except the introduction,the main contents are as follows:The first part discusses the applicable objects of the penalty adjustment rules.The provisions of the current legislation on the application of the penalty adjustment rules are still rough.The current theory generally believes that the referee should not actively apply the penalty adjustment rules.The parties did not apply for the adjustment of liquidated damages and other specific circumstances.For these special cases,can the referee take the initiative to apply the penalty adjustment rules? This article responds by explaining the purpose,benefit measurement,and analogy to the current rules.The conclusion is: in the case where the parties give up the right to request damages adjustment in advance,the clause stipulating the waiver of the right in advance is invalid,and the parties should be allowed to apply to the referee to reduce the damages.Referee specifically.In the case of post-abandonment,unless the breaching party ’s intention to abandon was made by coercion,the referee should not apply the penalty adjustment rules to adjust the penalty.In the case where the parties did not participate in the court proceedings without fault,in principle,the referee should not adjust the liquidated damages,but if the amount of liquidated damages is significantly abnormally higher than the actual loss of the observing party,the liquidated damages adjustment can be applied proactively rule.The second part discusses the issue of the distribution of burden of proof of excessive liquidated damages.The legislation establishes a rule to determine whether the liquidateddamages are too high with reference to the losses of the observing party.The proof of the high liquidated damages is converted into a proof of the loss of the observing party.It is very difficult for the breaching party to prove the losses of others,and it is often impossible to provide proof.Therefore,the general rules for the distribution of burden of proof are not fully applicable to the adjustment of liquidated damages.Through combing the status quo of justice,it is found that there are various treatment methods such as oppositional,compromise,and non-involved in practice.This article suggests that the burden of proof should be allocated according to the burden of proof and the type of loss.The conclusion is that the defaulting party shall bear the burden of proof for the loss of the party ’s available interests,and the defaulting party shall bear the burden of proof for the loss of compensation to the third party for breach of contract by the defaulting party,and the loss of capital occupation may be determined according to objective criteria.The third part discusses the application of the interpretation of the penalty adjustment standard.By sorting out the judicial status,we can see that the current judicial practice is quite inconsistent with this adjudication standard,which seriously damages the judicial authority and the fairness of the judgment.This article suggests that the adjustment of liquidated damages should be based on actual losses and loss of expected benefits,rather than just taking the loss of expected benefits into consideration;instead of taking 30% as an absolute standard,a determination that meets the specific circumstances of the case should be made on a case-by-case basis.For high-input transactions,the standards can be relaxed appropriately;different adjustments can be made according to the degree of subjective faults of the defaulting party;the performance of the contract can be considered from multiple angles,in addition to the amount of performance that has been performed,and also the type of obligations performed and the defensive performance The meaning of the party.
Keywords/Search Tags:Penalty adjustment rules, Applicable objects, Burden of proof and burden of proof, Adjustment standards
PDF Full Text Request
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