Research On The Proof Of Liquidated Damages Reduction

The rules for the reduction of liquidated damages stipulated in Article 585 of the Civil Code follow the provisions of Article 114 of the 1999 Contract Law.This rule has been widely used since its establishment.According to the regulations,if the liquidated damages are excessively higher than the losses caused by the breach of contract,the court may make appropriate adjustments."Can" means that it can be reduced or not reduced,which makes this provision different from the general legal norms that directly produce the established legal consequences.Determining the amount of loss has long been a difficult problem to prove,and the defaulting party has proved that the other party’s loss has evidence bias.All of these lead to different practices in practice.Based on the interpretation of Article 585 of the Civil Code,this paper argues that the fact that "the liquidated damages are excessively higher than the losses caused" is the establishment condition of the right to request for reduction of liquidated damages.However,when the request for liquidated damages reduction is established,it does not directly produce the legal consequences of liquidated damages reduction,but triggers the court’s discretion.The court decides whether and how to reduce the liquidated damages through an investigation of comprehensive factors.Procedural jurisprudence shall be applied to the trial of the claim for reduction of liquidated damages,and the breaching party shall bear the burden of proof.Difficulties in proof can be alleviated by the primary-face proof and the obliged to explain of the party who does not bear the burden of proof.The investigation of comprehensive weighing factors should be applicable to non-litigation principles,and judges can conduct investigations ex officio.The main content of this article mainly includes:The first part firstly sorts out the retrieved judgments about the reduction of liquidated damages cases,and uses statistical analysis methods to conclude that the rules for the reduction of liquidated damages in practice have the following problems inconsistent judgments,differences in the distribution of the burden of proof,and large liquidated damages;Secondly,through the analysis of specific judgment documents and theoretical analysis,it analyzes the reasons for the above problems in cases of liquidated damages reduction.The second part sorts out the legal norms of the reduction of liquidated damages rules.According to the norm theory,based on Article 585 of the Civil Code,combined with Article 29 of the Interpretation of the Contract Law II,it analyzes the constituent elements of the reduction of liquidated damages.Adopting the viewpoint of distinguishing between the requirements for the right to reduce the liquidated damages and the measurement factors,it is believed that the constituent elements of the right to adjust the liquidated damages are the first half of the clause:"the liquidated damages are excessively higher than the losses caused".After the establishment of the right of the liquidated damages reduction request,the judge will judge whether and how the liquidated damages should be reduced and how much according to the comprehensive factors.The judge’s comprehensive measurement is a discretionary power.On this basis,it analyzes that the breaching party should bear the burden of proof of the right to reduce the liquidated damages.The third part first uses the principle of the burden of proof in the procedural law to analyze the proof process of the claim for reduction of liquidated damages.In view of the problem that the breaching party has difficulty in proving the loss of the other party,it demonstrates the applicability of the primary-face proof and the obliged to explain of the party who does not bear the burden of proof in this type of case;Secondly,discussed the method of the judge’s investigation of the comprehensive measurement factors and the parties’ proof of these factors,combined with the performance guarantee function of liquidated damages.Judges intervene in their powers to investigate comprehensive measurement factors,and decide whether and how to reduce the liquidated damages.