Study On The Discretionary Reduction Of Liquidated Damages In The Dispute Of Contract Of Sale Of Commercial Properties

Commercial property transactions have received attention from all walks of life because of the large amount involved and the wide range of influence.With the rapid rise of housing prices,disputes arising from the sale and purchase of commercial properties have been on the rise year by year,and the number of cases of disputes over contracts for the sale and purchase of commercial properties heard by the courts has been high in civil trials.As a tool for parties to autonomously arrange the results of default relief,the discretionary rules of liquidated damages belong to the extremely active focus in transaction practice.Based on the perspective of disputes over the contract of sale and purchase of commercial properties,the current situation of judicial application of the discretionary rule of liquidated damages is reviewed through a statistical analysis of cases by retrieving a large number of samples of such cases,taking the judgments after the implementation of the Ninth Civil Discipline as a sample.In the first part,we will sort out the normative system of liquidated damages discretion in China,and we can find that the logical relationship between each normative provision is relatively close,but due to the fragmented provisions,it is still ambiguous,which may lead to the differences in judges’ understanding and application.The current situation of case adjudication in the case of discretionary breach of contract is analyzed,such as the subject matter of the lawsuit,whether to change the judgment or not,the trial period of the case,the subject type of the contract,the calculation of the breach of contract supported by the court,the statutory or discretionary considerations,etc.,and the phenomenon that should be concerned in the adjudication is explained.In the second part,through the study of the judicial status of the cases of liquidated damages discretion in the disputes of commodity house sales contract,it is found that there are three main differences in the courts’ views in the process of solving such cases: first,the subjects of liquidated damages discretion are also different,and it is still controversial whether judges can initiate liquidated damages discretion ex officio;second,the calculation standard of liquidated damages discretion is not uniform,which leads to liquidated damages discretion Third,the judges have different views on the allocation of the burden of proof of excessive liquidated damages,and even the Supreme People’s Court has made a verdict with diametrically opposed views.Finally,we propose to improve the divergent views of judges on the discretionary reduction of liquidated damages,starting from the following three aspects: firstly,correct the practice that the application of the discretionary reduction of liquidated damages rule is initiated ex officio,and clarify that the discretionary reduction of liquidated damages can only be initiated upon the application of the parties.The judge should return to a neutral position,and clarify the limits of his authority is limited to the interpretation.The judge should also be cautious and restrained when explaining the discretionary reduction of liquidated damages.Secondly,the district judges in various areas of the case research,and according to the local real estate and economic development of the contractual agreement of a reasonable liquidated damages standard limited to a specific range,to build a more specific,more practical operation of the liquidated damages adjustment model,to a certain extent to solve the problem of liquidated damages discretionary calculation standards can not be unified.Third,reasonable allocation of the burden of proof.It should be clear that the burden of proof of excessive liquidated damages should be borne by the defaulting party,not because the defaulting party is closer to the evidence,and the burden of proof will be transferred to the defaulting party,not to confuse the obligation to present documentary evidence with the burden of proof.In the dispute of delayed performance,the defaulting party shall provide relevant evidence to explain the basis of calculation of the discretionary amount of liquidated damages and the fact that the amount is considered unreasonable.In disputes over non-delayed performance of monetary benefits,it is not required to consider all possible losses in a discrete manner,but only to exhaust the inevitable losses for failure to perform the contractual obligations.In specific cases,without changing the burden of proof and the standard of proof,the obligation to explain the case may be used to alleviate the difficulty of proving the loss of the defaulting party.