Judicial Discretionary Rules Of Liquidated Damage

As a special rule established for the excessive amount of liquidated damages,the judicial discretionary rule of liquidated damages gives judges the right to interfere with the freedom of contract in order to protect the debtor and realize the substantive justice of the contract.At present,there are differences in the legal application of the judicial discretionary rules on liquidated damages,different understanding of the nature of the applicable object,mechanization of the application of measurement factors,and lack of uniformity in the application procedures.There are two views on the normative attributes of the judicial discretionary rules of liquidated damages: mandatory and arbitrary.The normative attributes of the judicial discretionary rules of liquidated damages determine whether the parties’ prior agreement to waive the discretionary provisions of liquidated damages has legal effect,and the issue has important practical significance.Through the form to explore the language expression of the norms and the substance to explore the normative purpose of the norms,judicial discretionary rules should have mandatory normative attributes.The reason is that the purpose of discretionary liquidated damages is to limit the freedom of contract that is too general and to pursue substantive justice,and in order to avoid the parties from circumventing the legislative purpose of the liquidated damages discretionary clause,the discretionary power shall not be excluded by the parties’ prior agreement.For the judicial discretionary rules of liquidated damages,there are three views that the judicial discretionary rules are only applicable to compensatory liquidated damages,only applicable to punitive liquidated damages and applicable objects without making type distinction.From the perspective of normative function,legal application and legal effect,the two types of liquidated damages bear different degrees of pressure function and compensation function according to the parties’ agreement,and the judge can reduce the high liquidated damages without distinguishing the nature of liquidated damages.The "calculation method of damages" is also one of the forms of liquidated damages,and the court should not support the request for discretionary reduction for the liquidated damages that have been paid or promised to be paid by the defaulting party.In practice,there is a direct application of fixed standards and ignore the phenomenon of comprehensive measurement factors,while judging whether the liquidated damages are too high should be comprehensive measurement as the basic idea,the creditors’ losses,contract performance,the role of the fault of the parties and other factors for dynamic measurement.The principle of fairness and honesty and credit can continue to create more factors in the discretionary rules of liquidated damages,such as the identity of the subject of the transaction,the contracting ability of the parties,the offsetting of loss and gain,the debtor’s economic situation and the rules of impairment,etc.,to reserve institutional space for judges to exercise discretion.In the application procedure of judicial discretion of liquidated damages,the exercise of the judge’s power of interpretation has the phenomenon of non-interpretation and excessive interpretation.The exercise of the judge’s power of interpretation should be limited to specific circumstances,in accordance with the explicit provisions of the law,and in an appropriate manner.In order to ensure that the breach of contract can play its role of simplifying the burden of proof,the subject of the burden of proof should be determined as the debtor.In order to consider various weighing factors,the judge should judge whether the amount of liquidated damages is too high at the end of the factual trial debate.