Research On The Reduction Regime Of Liquidated Damages

On the basis of the principle of autonomy of will, the contract law of our country allows the parties to agree on the liquidated damages. At the same time ,in order to avoid the excessive amount of liquidated damages caused a serious of imbalance in the interests of both the contract, the law also stipulates that the liquidated damages are too high, the parties have the right to apply for reduction of damages to the people's court or an arbitration institution. But China's relevant laws and regulations system of liquidated damages reduction space less, the content is too vague, and even contradictions between different laws and regulations, that resulting in the reduction of the penalty system in the actual operation, there are many problems. Study on the reduction regime of liquidated damages, is conducive to the improvement of China's laws and regulations, to refinement the general rules of penalty reduction refinement system, to provide legal and theoretical basis for judicial discretion, to Uniform discretion standard. This paper is divided into five parts on the liquidated damages reduction system.The first part discusses the theoretical basis of liquidated damages reduction system from the two aspects of the default property and the maintenance of contract justice .Among them, the key is to clarify the fact amendments to principle of freedom of contract penalty reduction, did not violate the principle of freedom of contract, which provides a solid theoretical foundation for liquidated damages reduction.The second part discusses the applicable premise,applicable scope and applicable principles of the penalty reduction system. Firstly we discuss the applicable premise of liquidated damages reduction system, and point out the penalty reduction by the breaching party to apply and breach of the provisions in force as a precondition. Then through the dialectical analysis of 3 kinds of theories on the scope of application, the penalty reduction system is suitable for the compensation of liquidated damages and apply to punitive damages. Finally, the court or arbitration in the trial of cases of liquidated damages reduction should follow prudent applicable principles and principles of respect for the wishes of the parties.The third part discusses the default rules of the exercise the right to request the reduction of gold. This part elaborates exercise subject, exercise way ,and exercise time of liquidated damages reduction claim using the disprove method and dialectical analysis.The penalty reduction claim is only limited to the parties, and the defaulting party can only request through the counterclaim or anti exercising way of liquidated damages reduction claim. In the exercise of the right time, the defaulting party in the first instance did not make the penalty for reduction and without the judge's interpretation; breach of contract claim gold discounted exercise time can be extended to the second instance.The fourth part elaborates the factors of liquidated damages reduction system. This part includes three aspects: first,the loss resulting from the breach includes actual losses and available interests losses. Second, the degree of fault of the party in breach influence the penalty reduction rate; Default party malicious default, that is, breach of contract intentional breach, the penalty was also the possibility of reduction. Third, the type of liquidated damages, the forms of contract is different, the standard whether the penalty is high is different, punitive liquidated damages from the perspective of debt, and compensation liquidated damages in the perspective of creditorsThe fifth part is about the perfection of the penalty reduction system in china.Through the analysis of China's penalty reduction system in the actual operation of the problems, namely, fuzzy rules and confusion, lack of unified referee scale, and puts forward concrete suggestions to improve the penalty reduction system in china. First,general rules of penalty reduction to refine the system in china. Specify the judge's interpretation right,clearly defined guidelines to reduce default gold as the principle, and default judgment standard of high gold refining. Secondly, lists the limitations and exclusions of liquidated damages reduction applicable to the case. Specifically, the provisions of the terms of the contract for the provider shall not reduce the amount of breach of contract, payment of liquidated damages shall not be reduced, less malicious breach of contract.The penalty reduction system of this study refers to he amount of liquidated damages reduction, not including the statutory penalty adjustment, not including the calculation method of the agreed compensation liquidated damages adjustment situation.The innovation of this paper is that did not adopt the dichotomy of procedural and substantive issues in the structure, take "legislative ideas pronged" in the suggestions,namely positive refinement rules, reverse list of exceptions.