Legal subjectivity:

1. Standards for overdue liquidated damages in sales contracts

If the seller claims compensation for overdue payment losses on the grounds of the buyer's breach of contract, the People's Court It can be calculated based on the People's Bank of China's benchmark interest rate for similar RMB loans for the same period and with reference to the overdue penalty interest rate standard.

(1) Calculation method of simple interest:

For example: A and B agreed on July 7, 2012 that B must pay a payment of 1 million yuan before August 10, but there was no agreement. Liquidated damages for late payment, the seller claims losses for late payment. On November 2, 2012, B failed to pay, and A filed a lawsuit in court. Calculation method to the date of prosecution:

Bank base interest rate: The annual interest rate within 6 months is 5.6%.

Penalty interest rate standard: calculated based on an additional 50%.

Number of days overdue: 84 days.

Loss on late payment: 1000000×0.056×1.5÷360×84=19600

Additional 50% daily interest rate: 0.056×(1+50%)÷360≈0.00023< /p>

(2) Calculation method of bank penalty interest and compound interest (interest compounding)

For example: On July 7, 2012, A owed B 1.1 million, of which 100,000 was interest, and the repayment The payment date is August 10, and the interest calculated to November 2, 2012:

Interest accrued on the principal: 1,000,000×0.056×1.5÷360×84=19,600

Interest Calculate compound interest:

The first day: 100000×0.00023=23

The second day: (1000023)×0.00023=23.00529

In the sales contract, Generally, compound interest will not be calculated. Once payment is overdue, overdue interest will be calculated directly based on the simple interest calculation method. The judicial interpretation uses the term "liquidated damages for late payment" and does not use "interest." Therefore, the interest rate standard for late payment agreed upon by the parties is not subject to the restriction of "not exceeding four times the bank loan base interest rate." The parties agreed on a relatively high interest rate, which is actually the agreed method for calculating liquidated damages. Both parties can foresee the consequences of breach of contract, and should bear the consequences if payment is overdue.

2. What are the circumstances of breach of contract?

The first is that one party fails to deliver or receive the goods without justifiable reasons;

The second is that one party fails to Improper performance for legitimate reasons.

3. The role of liquidated damages

First, liquidated damages are subordinate. Liquidated damages are different from the payment of liquidated damages. The former is generally generated in accordance with the liquidated damages clause and is a subordinate debt to the contract debt, while the latter is only the subject of the debt. It is precisely the liquidated damages debt arising from the liquidated damages agreement that is the subordinate debt of the contract, and the liquidated damages have its guarantee function. Because the traditional civil law guarantee methods such as guarantees, deposits, mortgages, and pledges are also subordinate debts established for the realization of the principal debt, they are therefore guaranteed.

Second, the establishment of liquidated damages can enable the parties to foresee the consequences of non-performance. After the contract is concluded, the parties can understand in advance the possible losses caused by breach of contract and the scope of liability. In order to avoid the liability to pay liquidated damages, the parties must perform the contract correctly. It is in this sense that liquidated damages can urge the parties to strictly perform the contract and ensure the realization of the creditor's rights. This point is also the same as liquidated damages and traditional guarantee methods.

Third, the second view generally uses the actual results after the debtor of liquidated damages loses his ability to pay off the debt to deny that the liquidated damages have the nature of security, which is not a sufficient reason. Guarantee is not insurance. It can only protect the interests of creditors to a certain extent. Even the guarantee method in traditional civil law cannot guarantee that the debtor will perform its debts when due.

Fourth, because the amount of punitive liquidated damages is relatively large and most of them have nothing to do with the losses caused by breach of contract, it can more effectively urge the parties to perform the contract. To sum up, overdue payment is a breach of contract and requires payment of a certain amount of liquidated damages. The amount of liquidated damages generally cannot exceed 30% of the loss. Legal objectivity:

Judgment of overdue delivery disputes in sales contracts: (1) The determined delivery time limit for delivery in a sales contract refers to the date on which the seller completes the delivery of the goods at the delivery location; correspondingly, The delivery period refers to the period during which the seller completes the delivery of goods at the delivery location from one issue date to another.

The period should refer to the calculation of time. It starts from a certain point in time, which is called the initial period, and stops counting at a certain point in time, which is called the final period. The performance period of the sales contract can also be determined in these two ways. The period refers to a period of time between one issue and another, such as a certain day to a certain day, a certain month to a certain month, a certain year to a certain year, or a number of days from a certain date, a number of days from a certain date. Weeks, months from a certain date, years from a certain date, etc. If the sales contract stipulates the period within which the seller will deliver the subject matter, these expressions or determination methods may be used. Although both deadlines and periods are expressed by specific and indivisible dates, there are still differences between them. The deadline is a calculation of time and only refers to one end of it, either the beginning period or the end period; while the period is the calculation of time. The passage of time is the period between the beginning and the end. Simply put, a deadline is a point in time, while a period is a period of time. The determination of the delivery deadline and delivery period in a sales contract is of decisive significance to whether the seller has late delivery behavior. Therefore, the key to hearing such disputes lies in the determination of the delivery deadline and delivery period of the subject matter of the sales contract. According to Articles 138 and 139 of the Contract Law, the determination of the seller’s delivery time limit shall follow the following rules: 1. If both parties agree on a delivery time limit, the seller shall deliver the subject matter within the agreed time limit. 2. If the two parties agree on a delivery period, the seller may deliver at any time during the delivery period. According to Article 33, paragraph 1, subparagraph (b), of the United Nations Convention on Contracts for the Sale of Goods, if the contract provides for a period of time or is determinable from the contract, unless circumstances indicate that a date should be selected by the buyer, the buyer shall Delivery at any time within that time period. 3. If the parties have not agreed on the delivery period of the subject matter or the agreement is unclear, they may agree to supplement it. If the parties only agree to start delivery but do not agree on when to terminate delivery, the agreed delivery period shall be deemed to be unclear; 4. If the parties have not agreed on a delivery period and cannot reach an agreement through negotiation, it may be determined in accordance with relevant determinations in the contract or transaction practices. . According to the relevant provisions of the contract, the contract interpretation should be based on the principle of good faith. For example, according to the general practice of various countries, if the contract does not stipulate a delivery period, the validity period of the contract agreed by both parties will be interpreted as the final delivery period. 5. If the delivery time limit cannot be determined in accordance with the relevant terms of the contract and trading practices, according to Article 62, Item 4 of the Contract Law, if the performance time limit is unclear, the debtor may perform the performance at any time, and the creditor may also require performance at any time, but The other party should be given the necessary preparation time. Therefore, in a sales contract, when the time limit for delivery of the subject matter is unclear, the seller can deliver the goods at any time, and the buyer can request delivery at any time, but the necessary preparation time should be given to the seller. ‘The so-called necessary preparation time refers to the time that the seller makes preparations for delivery under normal circumstances, which mainly includes the loading and unloading time of the subject matter, waiting time, transportation time, etc. 6. According to Article 140 of the Contract Law, if the subject matter has been possessed by the buyer before the conclusion of the contract, the time when the contract becomes effective is the time of delivery. The purpose of making such a provision is to facilitate transactions between buyers and sellers and reduce repeated delivery costs. (2) The determination of the place where the seller delivers the subject matter governs whether the seller has overdue delivery of the subject matter, and also involves the issue of determining the place of delivery of the subject matter. As for the place where the seller delivers the subject matter, combined with the Contract Law and trial practice, we can start from the following aspects: 1. The seller should deliver the subject matter at the agreed place. If the location for delivery of the subject matter is clearly agreed upon by both parties, the agreement shall be followed. Otherwise, the buyer has the right to refuse to accept the subject matter. If the seller delays performance due to this, he will still be liable for breach of contract. 2. When the two parties have not agreed on the delivery location or the agreement is unclear, the delivery location can be supplemented by agreement between the two parties. If the negotiation fails, the determination should be based on the relevant terms of the contract or transaction practices. 3. If the location of delivery of the subject matter still cannot be determined based on the above methods, the Contract Law shall be followed.