On The Effect Of The Terms Of Adjustment Of Abandonment Of Liquidated Damages

In the socialist market economy,contracts play an important role in people’s free transactions,but in order to better facilitate transactions or to reduce losses and reduce the burden of proof after breach of contract,liquidated damages clauses often become part of the contract.The terms of the most intense game between the parties.While the liquidated damages clause brings convenience to both parties to the contract,the parties to the contract often have disputes over the liquidated damages.In the cases of disputes arising from the issue of liquidated damages,although both parties to the contract have agreed on the terms of liquidated damages,disputes arise in most cases because of the amount of liquidated damages and whether they are too high.However,there is another phenomenon in cases of disputes over liquidated damages,that is,the parties to the contract have agreed to exclude the application of the liquidated damages clause of the civil law,that is,they agreed to waive the right to adjust the liquidated damages,and the resulting disputes are the parties to the contract.Whether the agreement of both parties to waive the right to adjust the liquidated damages is valid.So,is it valid for both parties to the contract to waive the right to adjust liquidated damages by agreement? There is no clear stipulation in the current law,and this issue is inconclusive whether in the theoretical or practical circles,and even the Supreme People’s Court has made two diametrically opposite judgments on this type of case,which has also led to theoretical and practical disputes.Practice disputes this phenomenon.In theory,some scholars believe that it is valid for both parties to the contract to waive the right to adjust liquidated damages by agreement,and the autonomy of the parties to the contract should be respected,and their agreement reflects the freedom of contract.However,some scholars hold the opposite view,believing that the parties to the contract have agreed to exclude the liquidated damages adjustment clause and give up the liquidated damages adjustment right is invalid,the agreement violates the principle of fairness,and the purpose of the civil law to establish liquidated damages adjustment is the freedom of contract.and reasonable restrictions,if both parties to the contract can waive the right to adjust liquidated damages by agreement,this is undoubtedly an oversight of the relevant legal provisions on the right to adjust liquidated damages.In the judicial circle,not only local courts at all levels have made very different judgments on cases in which the parties to the contract waived the right to adjust liquidated damages,but even the Supreme People’s Court has made diametrically opposite judgments on such cases.It can be seen that it is of great significance to the unification of the legal system to explore the validity of the waiver of the right to adjust the liquidated damages by both parties to the contract.The article holds that the agreement of both parties to waive the right to adjust the liquidated damages by excluding the liquidated damages adjustment clause is invalid.First of all,the right to adjust the liquidated damages is a request made by the parties to the court without the participation of the other party.The adjustment of the amount of liquidated damages by the court has no participation by the parties to the contract.It is only determined by the court.Interpretation is also a norm for the court,so the right to adjust liquidated damages has the attribute of judicial power.Second,the right to adjust liquidated damages is a public policy that contains the combination of contract justice and contract freedom.Therefore,the article holds that the parties cannot exclude the right to adjust the liquidated damages by agreement.If this agreement is valid,it will lead to more violations of the principle of fairness in civil law.The legislative purpose of this clause is not only to reduce the breach liability of the breaching party in the event of a breach of contract,but also a reasonable restriction on the freedom of the contract.If this clause can be excluded from application by the agreement of both parties to the contract,then this legal provision will undoubtedly be rejected.The parties agree to be empty.The existence of this clause is for the purpose of reasonable judicial intervention against the unreasonable liquidated damages agreed by the parties.If the right to request for adjustment of liquidated damages can be waived by the parties,the unreasonable liquidated damages will lose the grasp of judicial intervention.It will inevitably lead to unfair phenomena such as the strong contracting party squeezing the weak contracting party and the strong contracting party obtaining the right to break the contract at will,and it is impossible to achieve contract justice.Therefore,the article argues that it is invalid for both parties to the contract to waive the right to adjust the liquidated damages by agreement.