Study On The System Of Judicial Intervention In Liquidated Damages

The system of judicial intervention in liquidated damages aimed at maintaining the balance of the interests between the two parties of the contract, creating a substantially fair market trading environment, it’s in line with the values of fair and justice and the principle of good faith, it’s also the system design that greatly impact interests of the parties, however, the system failed to be sufficiently clear, explicit and complete both in theory and the application of law.Therefore. I choose "study on the system of judicial intervention in liquidated damages " as my topic, expected to be helpful to the perfection of the system.In the first part, I elaborate the basic theory of judicial intervention in liquidated damages system. Firstly, I explain what the liquidated damages judicial intervention system is. Secondly,I elaborate the legitimacy basis for judicial intervention in liquidated damages, that is why we intervene to the liquidated damages clause that freely agreed upon by the parties, pointed out that this is requirements of to maintain the justice of the contract via limiting the freedom of contract, keep the balance of interests between parties, and attributes and functionality of liquidated damages. Thirdly, in order to avoid the judicial intervention in liquidated damages exceeds the limits of necessity and infringe upon the freedom of the will of the parties, and thus needing to limit the judicial intervention in liquidated damages to a certain range, mainly through setting the applicable of principles and standards.In the second part, I introduce of foreign legislation on the system of judicial intervention in liquidated damages. Respectively introduces the legislation of the liquidated damages of judicial intervention system in the continental law system countries (including France, Germany, etc.) and common law countries (including Britain, the United States, etc.), and then compare the legislative of the two legal systems, pointed out that the two law systems are agree to the judicial intervention in liquidated damages, but choose the different means of intervention.The third part of this paper introduces the system of judicial intervention in liquidated damages of our country and its application of law. Focus on the he problem of applicable condition, application procedures and adjustment of the amount of liquidated damages.The fourth part is the main content of this paper, it is pointed out that China’s current system of judicial intervention in liquidated damages has not to the nature of the liquidated damages for qualitative and difference, a general standard of the adjustment of the amount of liquidated damages and lack of procedural provisions, in view of these problems, I puts forward that,the guiding principle of the system of judicial intervention in liquidated damages should be established, the two properties of the liquidated damages in the amount of liquidated damages should be regulated separately, the adjustment standards and the procedural provisions should be established.