Research On The Punitive Liquidated Damage

In this paper,a case is used as the breakthrough point,and some thoughts on the penalty types of punitive liquidated damages are made.At present,because the understanding of punitive damages and defining the disputed in the academic circles,research is insufficient.This article from the actual case in the judicial practice of punitive damages system,combing with the relevant definition and theory,put forward the punitive penalty should be in accordance with the "responsibility of parallel" to define the most reasonable point of view.After taking the responsibility of parallel that is based on our legislative judicial status quo and take punitive stance and attitude of gold were analyzed,found that the punitive damages legislation in our country is still in the blank,the relevant treatment in the judicial practice for understanding not unified chaos.In clear punitive liquidated damages the basic definition and the status quo,on the basis of certain punitive liquidated damages on the necessity of the system,and compared with similar concepts and distinguish,and the specific applicable conditions of punitive damages,restriction and adjustment of system building.Besides the foreword,the paper could be divided into four parts.The first part,from a practical case,this paper raises the concept of punitive liquidated damages,and the system of punitive liquidated damages are summarized.The second part is the present situation of punitive liquidated damages in our country,respectively,from the legislative,judicial and academic circles of the relevant status and position.The present legislation does not stipulate punitive liquidated damages,but the legislation is not completely deny the existence of punitive damages.In judicial practice,the recognition and application of punitive liquidated damages are very confusing.But in the judicial practice also have some have higher professional quality,understand the system of punitive liquidated damages or judge,also has the support of a small amount of punitive liquidated damages applicable precedent.Comb for academic status of punitive liquidated damages the standard definition of four research theory in our country,including the responsibility theory in parallel,the theory of loss compare,the theory of either standard and the theory of purpose,the theory of responsibilities in parallel is the main theory.The current legislation completely lack of the provisions of punitive liquidated damages.The third part is the necessity of establishing punitive liquidated damages system.From the five aspects of the existence value of punitive liquidated damages.The fourth part,the conditions for the application of punitive liquidated damages.This part points have three small part again.The first is the applicable condition of punitive penalty due to breach of contract.The first is the applicable condition of punitive penalty due to breach of contract.The first is the applicable condition of punitive penalty due to breach of contract.That must have a clear agreed by the parties,and shall be the meaning of "parallel" responsibility "is expressed as the premise;can not be presumed to apply punitive liquidated damages;party a unilateral fault,but not the actual loss is necessary.Secondly,analysis of punitive damages and compensatory damages,punitive damages,the relationship between the relationship between gold and punitive damages and punitive damages and deposit different,further affirmed the necessity of its existence.The forth part,The last part is the study of the punitive damages applicable restrictions and adjustment,the author thinks that punitive damages amount not to exceed the amount of the principal contract should be twenty percent,i.e.the reference standard to adjust the deposit guarantee law.At the same time,it should be given to the court to adjust the amount of punitive liquidated damages in accordance with the rules of the restrictions.