Research On Liquidated Damages Adjustment From The Perspective Of Individual Cases

Liquidated damages is the form of liability for breach of contract agreed by the parties when they conclude a contract.It is the result of consensus between the parties based on the principle of freedom of contract.In order to prevent the breach of contract damages from being too high or lower than the losses caused by the breach of contract,the law gives the judicial organ the power to adjust the breach of contract damages according to the application of the parties.Whether the creditor can unilaterally reduce the agreed excessive liquidated damages;When the parties do not propose to adjust the excessive liquidated damages,whether the court can take the initiative to adjust the liquidated damages according to its authority is two common problems in judicial practice.Moreover,there are different opinions on the solution of these two problems in the judicial judgment.The unilateral reduction of liquidated damages by one party and the exemption of the other party from part of the liability for liquidated damages are actually changes to the contents of the contract,and the provisions on contract changes shall apply.The liquidated damages shall not be arbitrarily reduced or increased by either party without the consent of the other party;Therefore,if one party cancels the other party’s partial liability for liquidated damages,the corresponding partial liability for liquidated damages can be cancelled only after both parties reach an agreement through consultation;Moreover,from the nature of debt,the legislative changes on debt relief from the contract law to the civil code of China and the investigation of comparative legislative models,debt relief does not take into account the wishes of the debtor,which will damage the relevant interests of the debtor.In addition,unilateral debt relief will impose benefits on the debtor,without respecting the independence of the debtor’s personality.Therefore,only when the cancellation of a certain debt has nothing to do with the interests of the debtor,When it does not involve the imposition of favors on the debtor,a separate mode of conduct can be adopted.In addition,the contractual mode should be adopted.If the parties agree on excessive liquidated damages,the judicial organ may adjust them at the request of the parties.However,if the party concerned fails to request for adjustment of liquidated damages due to absence of court hearing or overconfidence,the court may take the initiative to adjust the excessive liquidated damages ex officio.It is necessary and reasonable for the court to exercise public power to intervene in private rights.Specifically,as far as this article is concerned,it is in line with the legislative purpose of the liquidated damages adjustment system.On the premise of respecting the party’s autonomy,it ensures the case justice and substantive justice,balances the relationship between the principle of freedom of contract and the principle of fairness and good faith,and avoids individuals from using freedom of contract to damage the interests of others.Moreover,the judicial organ can prevent the civil subject from being damaged due to the lack of cognitive ability and rationality by properly interfering with the excessive liquidated damages agreed by the parties.In the form of case analysis,this paper starts with a typical case,extracts the above two issues involved,analyzes and explores the above issues in combination with domestic and foreign theories,relevant legislation and precedents,gives relatively reasonable conclusions,applies the conclusions to this case,and puts forward corresponding judgment ideas.