The Study On The Nature Of The Liquidated Damage

The liquidated damage system from the beginning of produce development up to now, has one thousand years of history. The world’s major countries have this system in their civil law. However, what is the nature of the liquidated damage, the liquidated damage is a kind of civil liability, punitive and compensation is the nature of the liquidated damage, or not. in the judicial practice, how to define the nature of the liquidated damage, these problems have a large number of scholars are discussed.Based on the concept of the liquidated damage and simple combing the historical development, through comparing the nature of the continental law system and Anglo-American law system the liquidated damage, to conclude the liquidated damage is a form of civil liability and further put forward under the premise and punitive compensation sex is the nature of the liquidated damage, determine the nature of the liquidated damage should be from two aspects of theory and the specific provisions of the contract, in the final we must admit the liquidated damages punitive and points out that punitive damages in the secondary position.A total of about twenty-five thousand words in full, in addition to the introduction, is divided into four parts:The first part, the concept of the liquidated damages and the historical development. This section introduces the basic concept of the liquidated damages, combed the liquidated damages in Roman times, in ancient China, the development history of continental law system and Anglo-American law system, this paper introduces the liquidated damages in common use centralized classification.The second part, the nature of the liquidated damages on common sense. General nature of the liquidated damages refers to the nature of the liquidated damages prescribed in the law in our country, the liquidated damages is a civil guarantee says or civil responsibility, through the criticism of the said civil guarantee, clear general the liquidated damages in our country although has the function of supervise and urge the debte fullfil his obligations, but essentially is a kind of civil liability.The third part, the understanding of our country "contract law" the 114 th. On the premise of the liquidated damages is a kind of civil liability, further put forward the liquidated damages is divided into punitive penalty t and compensation for penalty, and to the distinction between the two standards such as "damage compared to say", "rejection standard", "said damage to the preset standard", said one by one "damage to generate standard" carries on the analysis, think "damage the preset standard said" the most reasonable, namely whether the provisions of the penalty damages related to define compensation is liquidated damages or punitive damages. Articles in standard, use the distinction theory which carries on the analysis, thought our country belongs to that stipulated in the civil legislation of liquidated damages compensation for penalty. At the same time, the specific definition of liquidated damages clause in the contract that should respect the specific agreed by the parties, in the absence of agreement, see if I can reach a supplementary agreement, in the absence of an agreement are carried out in accordance with the "damage the default standard".The fourth part, our country exist he living space to punitive penalty. There is no specific provision in the legislation for punitive liquidated damages in our country, does not ban, as a result, based on the principle of autonomy of civil law, the parties may prescribe the punitive liquidated damages. But based on limited punitive damages in the civil law is the development trend of modern civil law, the punitie liquidated damages should be used under the strict conditions.