Liquidated Damages Adjustment System Research

Liquidated damages,as an ancient legal system,has been more than one thousand years.As a convenient and efficient means of civil rights relief,it is favored and enduring in today's rapid economic development.Our penalty due to breach of contract and its adjustment system stipulated in new "civil code" article 585,in addition to text word order transfer,almost follows the "contract law" in 1999 penalty due to breach of contract,the relevant provisions of the did not controversial problems of academic circles and judicial practice to respond,such as the nature of the breach of contract and adjustment function,the liquidated damages system of a series of problems such as the applicable objects,the consideration standard.Therefore,this article will focus on the above problems,through the comb to typical cases,from the Angle of combining theory and practice,put forward the reasonable positioning the qualities and functions of liquidated damages under the premise of establishing the system of adjustment based on principles of civil and commercial distinguish of liquidated damages,clarify the penalty due to breach of contract adjustment "qualitative" and "quantitative" problems,to prevent the alienation penalty due to breach of contract for the "termination of gold",trample the contract spirit and fairness and justice.This paper is mainly divided into four parts:The first part explains the theoretical basis of liquidated damages adjustment system.This part first points out that China's liquidated damages adjustment system is based on the theory of judgment of liquidated damages nature.But after combing,found that the nature of the breach of contract in our country and adjustment function,the liquidated damages system of applicable object and the suitable conditions,behind the surface height consistent differences exist serious theory,and combining with the theory and legislation of the domestic and foreign system carries on the analysis comparison,and give advice,adjust the system to lay the theoretical foundation for later perfect penalty due to breach of contract.The second part analyzes the necessity of liquidated damages adjustment.This part analyzes contract justice and contract freedom respectively,and puts forward the necessity of liquidated damages adjustment in terms of legal theory through the perspective of the game between value selection and interest balance.And then through the introduction of the case data visually on cases from 2010 to 2019,10 years of data analysis,pointed out that in the contract law explanation(2),our country all over the country,the courts at all levels in the penalty due to breach of contract to adjust some phenomena and problems in the cases and the influence of life to the people,points out the necessity of penalty due to breach of contract adjustment in the aspect of practice.The third part discusses the legal obstacles existing in the system of liquidated damages adjustment.First of all,this paper makes a comparative analysis of the domestic and foreign norms,and points out the legislative defects of the current legal system in China,such as the unclear nature of liquidated damages,the fuzzy criteria for the adjustment range,and the lack of distinguishing between civil and commercial liquidated damages.Secondly,through the introduction of typical cases,this paper points out the problems existing in the current judicial practice,such as the chaos of the initiation of the liquidated damages adjustment procedure,the different judgment standards of the court on the liquidated damages adjustment,and the phenomenon of "one size fits-all" of the mechanical application of laws in some courts.The fourth part puts forward the perfect path of liquidated damages adjustment system.Through the above analysis of theories,norms and practices,it is found that disputes at the level of legal systems often stem from the weakness of relevant basic theories.Based on this,it is necessary to clarify the nature and function of liquidated damages first,and then to accurately locate the applicable objects of liquidated damages adjustment system.Secondly,in terms of the entity norms of the liquidated damages adjustment system,it elaborates the consideration standards for liquidated damages adjustment.This paper defines the status and scope of damage caused by breach of contract in the standard of consideration,and puts forward some suggestions on the effectiveness of the principle of civil and commercial distinction in the system of liquidated damages adjustment.Thirdly,in the liquidated damages adjustment system procedure standard aspect,clear liquidated damages adjustment procedure limit.Suggestions are put forward on the starting of the adjustment procedure,the exercise of the judge's interpretation power and the scope of the exercise.