On The Adjustment Rules Of Liquidated Damages

Penalty due to breach of contract system has a long history and its function mainly is secured debt, at the same time, in time to make up for the loss of the victim, sanctions violations actor. Breach of contract has a wide range of use in all countries in the world, our country "contract law" article 114 of this law also for breach of contract. But both in theory and practice of the adjustment of the penalty due to breach of contract on the basis of the understanding of the nature, the penalty due to breach of contract law is controversial, for our country "contract law" article 114 the connotations and functions of the lack of deep understanding. The purpose of this paper is to through the analysis of the liquidated damages amount adjustment system, trying to from a new Angle to define the nature of the breach of contract, value, and on the analysis of the problems existing in the legislation and judicial practice in our country at present, on the basis of reference for academics put forward their own views, in order to establish a relatively clear in our country, scientific penalty due to breach of contract adjustment system.Besides preface and conclusion. Mainly includes four parts:The first part of the problem, present that the liquidated damages as supervise and urge the parties to the agreement, to impose a penalty on the destroying party to make up the other party is a significant plan, make an vital dedication to the growth of market financial condition. But "agreement law" square damages provided by law of manifestation is not distinct, for the civil law theory and judicial work of argue hold a great space.Through explain of three judicial examples, show the judicial practice in the punishment due to break of contract adjustment discretion standard and dimension not unified the actual situation.The second part of an overview of the liquidated damages system, by tracing the origin of the punishment due to destroy of agreement system, to attain the target of punishment due to destroy of contract, legal nature, the necessity of judicial arbitrate to destroy of contract and its academic foundation in detail, such as combing with research and analysis. In different academic controversy was reviewed on the foundation of the suggested penalty due to destroy of contract and dispute both compensation and compensation dual attribute is to conform to the goal of the legislation law.The third part of the quantity of settle harm to fit to the understanding of the law, the mediation of the punishment due to break of contract in nature gives the lawful rights of obstruct with the freedom of contract, when "the agreed squared harm under or too much higher than that of the damage caused by", the "may ask the people’s court or an arbitration organization to add or reduce the", therefore,"defaults" and decide how to decide the amount of liquidated harm is "less than" or "too much higher than the default loss becomes the key to judicial can adjust punishment caused by break of contract. In combination with the related theories and explicit cases, on the foundation of the "damage","too much higher than","less than","expected benefits law" key word meaning in connotation and extension to be precise and scientific definition.The last part of the make better the system of punishment caused by break of contract mediation, research penalty due to breach of contract adjustment system on the basis of the shortcomings in our country, and shall be established in our country were put forward to request the parties is given priority to, supplemented by judicial initiative is adjusted for breach of contract adjustment procedures, establish the amount of liquidated damages system of standards, the nature of the clear penalty due to breach of contract law, such as perfecting suggestion.