Study On The Clause Relating To The Numerical Adjustment Of Liquidated Damages And Relative Suggestions

The system of liquidated damages can be traced back to the Roman law. In Roman law, the contract with liquidated damages clause, in which both parties agree that the debtor shall, in case he fails to perform his obligations, pay a certain amount of money to the creditor to penalize the debtor and compensate the creditor, is an approach of debt preservation. With the development of society, the Liquidated Damages Adjusting system was gradually built up. In China, it is mainly reflected in laws, regulations, such as General Rules on the Civil Law of the People’s Republic of China, Contract Law of the People’s Republic of China and relevant judicial interpretations. The essence of the Liquidated Damages Adjustment is judicial intervention, which means that People’s Courts or Arbitration Commissions may make an adjustment to the liquidated damages in a proper process based on application of parties, if the amount agreed is significantly higher or lower than the damages incurred. With the development of society and economic progress, contract cases are the most common in China. Liquidated Damage is stipulated in the Contract Law as one of the liabilities for breach of contracts, but not specifically. As a result, the differences in understanding of the Liquidated Damages’ essence lead to different practices. The discretionary power and allocation of burden of proof between judges in judicial practice frequently lead to injustice, such as there being different decisions in the same cases. Therefore, this article is based on a real case, at first it draws a conclusion of Liquidated Damages Adjusting system focus of contradictions in this case, and then with some problems of this case is to solve Liquidated Damages Adjusting practical problems.Firstly, it introduces the basic theory of the liquidated damages, and then analyzes the necessity and applicable conditions of liquidated damages adjustment. Especially introduces the law evolution of Liquidated Damages Adjusting system in our country. Secondly, it concludes some problems in our Liquidated Damages Adjusting system on above case, such as abusing of judge’s clarification right, unclear of the burden of proof, undefined of the scope of damages. Finally, it makes perfect suggestions aiming at the problems of induction of one by one, which respectively makes clear of the burden of proof, the condition and way of using judge’s clarification right and the scope of damages. Furthermore, it presents my own points in order to solve this case with the focus of contradictions. Not only does the article combine with the practice and break the routine, but it also aims to seek reasonable, realistic solutions in the background of further improvement of the quality of trial and resolving social conflicts.