Study On The Main Issues Of Covenant Waiver Of Liquidated Damages Adjustment Clause ——Judicial Decision As An Entry Point

Article 585,paragraph 2 of the Civil Code（Adjustment Clause for Liquidated Damages）follows Article 114,paragraph 2 of the Contract Law and provides that if the liquidated damages agreed between the parties are lower or excessively higher than the damages caused,the judicial authority may adjust them at the request of the parties.If the parties agree to waive this clause,does the agreement have legal effect? Neither the Contract Law nor the Civil Code gives a clear answer,which has led to frequent cases of different judgments in judicial practice.After searching the cases and sorting out the cases retrieved from multiple dimensions such as "controversial" and "authoritative",it is found that in judicial practice,there are three main types of problems in the decision of waiving the adjustment clause of liquidated damages: confusion in the determination of the nature of liquidated damages,unclear determination of the nature of liquidated damages and civil law.The nature of the adjustment clause is not clear and the civil law principles are not properly applied.In view of this,through the combination of theory and practice,we analyze and argue the above problems and learn that: firstly,the common law system only recognizes the compensatory nature of liquidated damages,while the civil law system believes that liquidated damages are both punitive and compensatory in nature,and should be mainly compensatory and punitive in nature.However,although the theory of the civil law system is more reasonable than the common law system,its existing nature should be adjusted,and the importance of punitive liquidated damages should be enhanced in the future.Secondly,no matter from the literal expression of the article or the content requirements can be launched,the liquidated damages adjustment clause conforms to the provisions of the arbitrary norms,and belongs to the supplementary arbitrary norms,the parties agree to waive the liquidated damages adjustment clause does not violate the validity of the mandatory norms.Finally,the agreement to waive the adjustment clause of liquidated damages conforms to the principle of voluntariness and the principle of disposition（the two are the embodiment of the principle of autonomy in the field of civil law and civil procedure law respectively）,and the principle of good faith should be used as a reason to protect the rights and interests of the party in default rather than the rights and interests of the party in breach of contract.The judicial authority shall not interfere with the parties’ agreement to waive the liquidated damages adjustment clause on the grounds of violation of the fairness principle and good faith principle,or explain the liquidated damages adjustment clause to the defaulting party.