Research On The Application Of The Rule Of Discretionary Reduction Of Liquidated Damages

The liquidated damages system originated in the Roman law period.After experiencing the confrontation of legal opinions in different periods and the inheritance and reform of related systems,the liquidated damages system has become more and more perfect.It has played a significant role as the presupposition of damages for the parties and the guarantee for the performance of the contract.However,the history of liquidated damages is also a history of restricted liquidated damages.Based on the rationality of the parties,the ability to conclude a contract,the status of the contract,and other factors,absolute freedom of contracting will disregard the interests of disadvantaged groups.Therefore,the rule for the reduction of liquidated damages has become an important system generally recognized and established by civil law countries.Article 585 of the "Civil Code" stipulates the rules for the reduction of liquidated damages,but compared with the previous Article 114 of the "Contract Law",no major changes have been made.With the continuous expansion of the scale of transactions and the increasing diversity of transaction types,the legislation and judicial interpretations related to judicial discretionary rules need to be further refined and improved.Issues concerning the discretionary standards and measurement factors of discretionary rules in judicial practice also need to be resolved urgently.This article is mainly divided into the following four parts.The first part starts with an overview of the rules for the reduction of liquidated damages,discussing the justification basis for the application of the rules for the reduction of liquidated damages,as well as the current status of legislation and judicial application related to the rules;the second part analyzes the application of the right to request for the reduction of liquidated damages Rules: Mainly on the basis of clearly defining the nature of liquidated damages,research on the applicability of discretionary rules to compensatory liquidated damages or punitive liquidated damages,and discuss whether the rules apply to special types of liquidated damages in judicial practice.In addition,the subject and method of application of the rule of discretionary damages for liquidated damages are also analyzed and demonstrated;the third part is to study the measurement factors when the rule of discretionary damages for liquidated damages is applied.As the "Guiding Opinions" have too broad provisions on measurement factors,the phenomenon of "different judgments in the same case" in judicial practice has emerged one after another.Based on the current judgment model of "actual losses caused + comprehensive measurement factors",it is proposed to address issues such as the scope of "actual losses",the difficulty of identifying actual losses in special types of breaches,and the fact that comprehensive measurement factors are often overlooked.Corresponding countermeasures;The last part is to study the application of the rule of liquidated damages reduction in procedural law.As there are still controversies about the judge’s right of interpretation and the distribution of burden of proof in the rules for the reduction of liquidated damages,I intend to put forward my own opinions by analyzing the opinions of different scholars and related judicial cases.