Research On The Adjustment Rules Of Liquidated Damages From The Perspective Of Civil And Commercial Distinction

There is no exception to the judicial discretion of mercantile contract liquidated damages,which is different from civil contract liquidated damages.Through the study of a large number of judgments,the author analyzes the fine for breach of mercantile agreement and finds that it is different from the fine for breach of civil agreement.This is reflected in whether to adjust the liquidated damages and how much.This paper holds that it is necessary to distinguish civil and mercantile contracts when applying the rules of liquidated damages adjustment,and puts forward the perfect path of the application of mercantile contract liquidated damages adjustment.The introduction gives the backdrop,and then leads to the problems to be solved.This paper summarizes the existing theory,legislation and judicial adjudication.What else,the introduction also introduces the analysis methods and ideas.The first chapter is the introduction of the theoretical basis of law.The liquidated damages are the result of consensus through consultation,and the adjustment of liquidated damages violates the principle of freedom.But in the interest of fairness,sometimes adjustments are needed.But it is only legitimate to adjust the mercantile contract under special circumstances.The adjustment of liquidated damages plays a certain role in maintaining the order of market economy.The second part analyzes many cases on the adjustment of mercantile liquidated damages.It is found that fine for breach of mercantile agreement is different from it in civil agreement,and there are many such cases.It analyzes how the particularity of mercantile contract is reflected in the judgment,whether it has an impact on the judgment results,and what kind of impact it has.According to the analysis of the case,the problems for further discussion are raised.The chapter three reveals the reasons for the results reflected in the cases.Firstly,First,the law is unclear;secondly,the concepts of civil and mercantile adjudication are different,and mercantile adjudication pays more attention to mercantile profit,quickness and safety than civil adjudication;the intervention degree of mercantile adjudication on will autonomy is lower than civil adjudication;the protection of fairness in civil and mercantile adjudication is also different.The fourth chapter points out that the adjustment of liquidated damages should be divided into civil and commercial matters.There are three main reasons.The first is the different nature of the contract,the second is the limited function of civil law,its adjustment to business is not as good as commercial law.Third,the penalty function of liquidated damages should be applied to distinguish the main body of the contract.Therefore,it is necessary to distinguish the application of the adjustment rules of liquidated damages in civil and mercantile contracts.The fifth chapter discusses how to adjust the mercantile liquidated damages.Firstly,we must find out the overall framework.Both parties of mercantile liquidated damages should be businessmen,which can be adjusted only when there is commercial irrationality.As for the adjustment of the proportion,it may not be subject to a 30% loss.The specific implementation methods are: making general principles of mercantile law,launching typical cases and so on.