Study On The Types Of The Exemption Causes Of The Shareholder Derivative Action In The Limited Liability Company

The system of liquidated damages is an important system in the field of contract in China.In order to respect the autonomy of the parties,the amount of liquidated damages was not limited by law at the beginning of its establishment.However,freedom is not boundless.In order to maintain the justice of the contract,the law gives the parties the right to request the court to adjust the unreasonable liquidated damages,which is the system of liquidated damages adjustment.And the adjustment of liquidated damages can be divided into increasing and decreasing the liquidated damages.From the rules of decreasing the liquidated damages,the judgment standard and specific discretion standard of excessive liquidated damages in China’s legislation are relatively abstract,which puts forward higher requirements for the exercise of judges’ discretion.This paper studies the cases of penalty reduction,summarizes the problems of penalty reduction in practice,analyzes the judge’s judgment logic and the reasons of "different judgments in the same case",in order to provide some reference for unifying the judgment standard.This paper is divided into four parts.The first part is the basic understanding of penalty reduction.This part analyzes the definition of liquidated damages,clarifies the object of judicial discretion of liquidated damages,and compares the system of liquidated damages with related systems,so as to reflect the differences between different systems and the special functions of the system of liquidated damages.The second part is the theoretical basis and legislative status of the discretionary rule of liquidated damages.In this part,the author interprets the theoretical basis of the discretionary penalty and combs the development of the penalty system.The third part is the empirical study of the discretionary penalty.In this part,through empirical research on a large number of cases of discretionary penalty,the author finds that there are some problems in China’s judicial practice,such as different scales of penalty judgment,confusion in the distribution of burden of proof,and mechanization in the determination of excessive penalty.The fourth part is the improvement of judicial discretion of penalty.In this part,in view of the problems existing in judicial practice,the author proposes to distinguish the discretionary reduction of liquidated damages in different types of contracts.For example,in the construction contract,the characteristics of the engineering industry and the particularity of the cost of capital use should be considered,and the liquidated damages should be regulated by the private lending rate standard;In the contract of sale,contract and lease,we should clarify the gist of judicial interpretation,and consider the similarities and differences of losses between the private lending contract and the above-mentioned contract in daily transactions;The discretionary reduction of liquidated damages in property service contracts should highlight the punitive nature of liquidated damages.As for the distribution of the burden of proof,the defaulting party should bear the burden of proof for the meaning of result,and at the same time,the burden of proof for the meaning of act should be shared between the two parties.The determination of excessive liquidated damages should be based on "comprehensive judgment standard",supplemented by "30% judgment standard".