ii. related contents of liquidated damages
1. the so-called liquidated damages refer to the payment made by the parties in advance through consultation, which is independent of the performance after the breach of contract. The subject matter of liquidated damages is money, but the parties may also agree that the subject matter of liquidated damages is other property than money. Liquidated damages have the effect of guaranteeing the performance of debts, punishing the defaulter and compensating the losses suffered by the innocent party. Therefore, some countries regard it as one of the measures to guarantee the contract, while others regard it as the way to bear the responsibility for breach of the contract.
2. China's theoretical circles agree that liquidated damages are compensatory and punitive, and there are several schools of views due to the differences in their views: some think that punitive liquidated damages should be abolished in China's liquidated damages system, so that liquidated damages only remain compensatory, that is, only compensatory liquidated damages should be retained; Some people think that China's penalty system should recognize punitive liquidated damages while stipulating compensatory liquidated damages, that is, compensatory liquidated damages are the main ones, supplemented by punitive liquidated damages; Some people think that punitive liquidated damages should be given priority to, supplemented by compensatory liquidated damages; Most scholars believe that the two properties of liquidated damages should be recognized at the same time, and the principle of compensation should be taken, with punitive as an exception.
3. The relevant laws and regulations only stipulate a certain proportion of liquidated damages. This requires a certain ratio to be determined by the people's court or the contract arbitration institution that accepts the case before the amount of liquidated damages can be calculated. For example, as stipulated in Item 1 of Article 35 of the Regulations on Contracts for the Purchase and Sale of Industrial and Mining Products, if the supplier fails to deliver the goods, it shall pay liquidated damages to the buyer. The penalty for common products is 1% to 5% of the total value of the undeliverable part. Generally speaking, the legal liquidated damages for non-performance or incomplete performance of the contract are within a certain proportion.