Application Of Penalty Clauses For Breach Of Agreement Between Online Live Streaming Platforms And Livestreamers

With the popularity and application of the Internet and big data,the network live broadcast industry has prospered increasingly.However,with the pursuit of profits by capital,the competition of the network live broadcast industry is frequently chaotic.The job-hopping of anchors has caused a great many of legal disputes on the applying of the liquidates damages clause between anchors and platforms in judicial practice.The approach of determining and applying the liquidated damages clause between anchors and platforms properly will become the most favorable solution to resolve such disputes successfully and protect the interests of both parties.This Thesis includes the following four parts:Part Ⅰ clarifies the definition of network broadcast platforms and various network anchors in the network broadcast industry in the context of Internet,as well as all kinds of cooperative modes between platforms and anchors.Based on these conclusion,this Thesis defines the liquidated damages clause in the agreement between platforms and anchors including agreed subject,purpose of the clause and major modes of default.Part Ⅱ analyzes the current difficulties in the application of the liquidated damages clause in the agreement between network broadcast platforms and network anchors,it includes three points: qualitative difficulties in legal relations,deficiencies in the rules of validity recognition and difficulties in liquidated damages reduction.The qualitative difficulty of legal relations is bascially the conflicts between conventional standards and new employment relations.The deficiencies in rules of validity recognition is connected closely with the fact that it may hard to invoke the non-competition clause and standard clause in specific circumstances.And it is difficult to reduce liquidated damages because of the non-uniform standards of reducing and margin of reducing.Part Ⅳ analyzes the causes of the difficulties in applying liquidated damages clause in the agreement between the network live broadcast platform and network anchors.Firstly,this Thesis utilises the statistical analysis of the agreement status quo of liquidated damages clause in the agreement between network broadcast platforms and network anchors to clarify the essential elements and asserts the reason why the application of liquidated damages clause in practice is difficult is that the diversity and inconsistency of these essential elements.Plus,this Thesis analyzes the difference of discretion existing in judicial practice,accumulates the different views of the court about the qualitative contracts relations,the difference in the recognition of liquidated damages clause and the different discretion on the reduction of liquidated damages clause,and this Thesis provides the influence of the currently mainstream views of courts,other reasonable views and their reasons on the application of liquidated damages clause.Part Ⅴ suggests the approach of application of the liquidated damages clause.In details,when determining the legal relations between live streaming platforms and anchors,It is necessary to pay attention to the multiple characteristics of its legal relationship and focus on the comprehensive consideration and its weight in the case,thus it is important to flexibly determine the legal relations according to the major content of the agreement.In addition,when examining the validity of liquidated damages clause,it is not suitable to mechanically apply the existing laws,and reexamining the rules of non-competition clause and standard clause thoroughly;The determination of whether liquidated damages are too high and the determination of the discretionary range should also adopt the comprehensive judgment standard,which should be made prudently and appropriately according to the performance of the contract,the parties’ fault degree,the anchor’ influence,etc..without excessively adherence to the definition of loss.