On The Classification Of Liquidated Damages And The Reconstruction Of Rules

Article 114 of the contract law of our country has a rough standard of liquidated damages,and the theories of liquidated damages system are not agreed on,which leads to the conflict between the judgment standard of liquidated damages "over 30%of the loss" and the rationality of "fake one penalty ten" in the judicial practice of our country.In the face of the development requirements of optimizing the business environment and building the social credit system in China,the liquidated damages system,as a widely used remedy for breach of contract in the field of contract law,should be further sorted out and improved.This article from the perspective of system of penalty function and value,the type of liquidated damages,penalty due to breach of contract effectiveness and penalty due to breach of contract legal rules have been changed from three aspects of the progressive thinking path,in a clear penalty due to breach of contract system in our country's legislation present situation and the existing theory point of view on the basis of classification,points out the penalty due to breach of contract into the necessity of compensation for breach of contract and punitive penalty due to breach of contract,and puts forward the criterion to differentiate between a "subjective fault",and then straighten out penalty due to breach of contract damages,and continue to perform the applicable relationship,adjust the rules for penalty due to breach of contract justice refactoring criteria corresponding proposals are put forward.Firstly,it is clear that liquidated damages has the function of filling the breach damage and the performance of the secured debt,and its system value lies in making up for the legal nature and limitation of the legal breach relief through the principle of autonomy of will.Combing legislative process in the system of our country's penalty due to breach of contract,around the "contract law" the 114 th and its related judicial interpretation,content from the penalty due to breach of contract types,effectiveness and judicial rules have been changed three sides facing penalty due to breach of contract system in our country's legislation present situation analysis and theoretical disputes,points out that the establishment of punitive liquidated damages compensation for breach of contract and the necessity of classification.Secondly,introduce the classification of the existing penalty due to breach of contract classification in our country and the theory and view,and analyzes the inherentmeaning penalty due to breach of contract and the inherent meaning of liquidated damages,compensation for breach of contract and compensation for punitive penalty due to breach of contract as well as the recent sex penalty due to breach of contract and the performance guarantee penalty due to breach of contract,such as classification and distinguishing standard,and on this basis,put forward on the basis of "subjective fault" compensation for breach of contract and in the punitive penalty due to breach of contract,namely when the parties to the contract agreement clear,according to the two sides set penalty due to breach of contract terms and conditions of the subjective purpose to determine the penalty due to breach of contract type;If the agreement between the parties is not clear,the type of liquidated damages shall be determined according to the subjective fault of the breaching party.Thirdly,by comparing the predetermined rules of the total amount of damages and the predetermined rules of the minimum amount of damages,it is clear that China should adopt the predetermined rules of the total amount of damages,and then it is clear that the compensatory liquidated damages should not be applied in parallel with the compensation for damages,while the punitive liquidated damages can be applied in parallel with the compensation for damages.By referring to the extraterritorial legislation,it is pointed out that the liquidated damages can be applied in parallel with the continued performance,which has nothing to do with the classification of liquidated damages,but is related to the breach situation or the occurrence condition of liquidated damages.Finally,based on the classification of punitive liquidated damages and compensatory liquidated damages,it is suggested to establish different judicial adjustment criteria respectively.The compensatory liquidated damages should be determined on the basis of the losses suffered by the non-breaching party,while the punitive liquidated damages should be determined on the basis of the gains made by the breaching party.