Analysis Of Adjusting The Amount Of Liquidated Damages

The liquidated damages system, originated from the Roman law, is a main remedy in the modern civil and commercial contracts. It is used widely in the practice due to the efficiency and safety. The liquidated damages as generally regarded, is a pre-compensation for the damage in the future, which may result in the great difference between the amount of the fine and the losses resulted from the breach of the contract. All of the countries of the world may allow the adjustment of the improper liquidated damages in order to reach the justice. The article114of the contract law of our country and the second interpretation thereof lie down the regulation of the adjustment of improper liquidated damages, which prescribe the standard of reasonable liquidated damages and its factors referred to. However, no description is provided in the light of the distribution of the burden of proof, interpretation of the judge, the determination of the scope of the loss and the foreseeable interests. Therefore, the judge made thereby is hard to reach to the standard and universal degree, which can not make a balance between efficiency and justice and make the judicial practice quite difficult. This paper, from the point of view of the concept and theory of the liquidated damages combined with the specific cases, touches mainly the substantive and proceeding issues related to the adjustment of the liquidated damages and put forward the suggestions on the improvement of our default fine system. This paper is divided into three parts.The first part touches the introduction and analysis of the cases, which introduces the common issues in the adjustment of the liquidated damages.The second part involves, by the combination of the main contents of the adjustment of the liquidated damages, the nature of the liquidated damages, the standard of the adjustment, the factors referred to, the use of the interpretation of the judge and the distribution of the burden of proof, and the analysis that the judges of the first and second court of trial is reasonable or not.The third part, based on the current situation of the adjustment of the liquidated damages of our country, put forward suggestion on the improvement thereof as the recognition of the interests and losses, the limits on the period of the raise of adjustment of the liquidated damages and others.