In a collection case, there are generally two claims, the first of which is a claim for the principal part of the paymentThe second is a claim for liquidated damages.
For example:1The defendant was requested to be ordered to pay the plaintiff $xx for the goods.
2.It is requested that the defendant be ordered to pay the interest on overdue payment liquidated damages of xx yuan [based on xx yuan, from xx date, according to the one-year loan market ** interest rate (LPR) xx% as the standard, calculated until the date of actual repayment of the defendant, temporarily calculated to xx day, xx yuan].
The above amount totals xx yuan.
The nature of the penalty for late payment is the loss caused by the late payment.
If the specific calculation method of liquidated damages is not clear in the appeal, then the judge will definitely ask the basis for the calculation of liquidated damages and how the calculation data is obtained. For example, "How to determine the starting point of the plaintiff's interest on overdue payment?"How are interest rates determined?”
Therefore, it is very important to clarify the claim for liquidated damages.
Regarding liquidated damages, we first need to determine three data: first, the calculation base of liquidated damages;Second, the starting point of liquidated damages;Third, the calculation of liquidated damages.
1-1 Base amount of liquidated damages. The calculation base of liquidated damages is easy to determine, that is, the amount of payment for goods that are reconciled and confirmed by both parties, or the corresponding amount of goods for the part of the part of the delivery obligation that one party has fulfilled.
The plaintiff can provide some evidence to prove the amount of the payment, such as statements and statementsIf there is no reconciliation, you can submit the sales contract, shipping note, receipt note, logistics bill, signed receipt, chat records of both parties and other materials that can support the delivery of the goods if transported by express delivery.
1-2 The starting point of the penalty The starting point of liquidated damages is the next day after the expiration of the other party's payment term, first of all, look at the contract, for example, the contract stipulates that the reconciliation is one month after delivery, and the payment is made within 7 days after the reconciliation, you can submit the statement, and the date stated in the statement + 7 days is the starting point. If the other party refuses to reconcile the statement after the statement is issued, and the supplier has supplied the goods according to the contract, a reasonable period of time may be determined as the starting point for liquidated damages.
If there is no contractual agreement, and according to Article 628 of the Civil Code, if there is no agreement on the time of payment of the price or the agreement is not clear, and the parties cannot reach a supplementary agreement, the buyer shall pay at the same time as receiving the subject matter or extracting the documents of the subject matter. That is to say, if there is no agreement, the delivery shall be paid immediately, or it may be determined according to the time of the supplier's written reminder plus a reasonable period. Evidence to determine the starting point of liquidated damages shall be submitted and marked together.
1-3 How liquidated damages are calculated. This is also the most important piece of data, which can be determined according to the following lines:
1) There is an agreement. If the two parties agree on the amount or calculation method of liquidated damages in the contract, the calculation shall be carried out in accordance with the agreement of both parties. However, if the liquidated damages are excessively higher than the losses, they may be adjusted by the court.
2) There is no agreement to look at the type of contract. If the contract does not stipulate the calculation method and amount of liquidated damages, it can be determined according to different contract types.
For example, inSales and Purchase ContractIf the default occurred before August 19, 2019, it shall be calculated based on the benchmark interest rate of the same RMB loan of the same type of People's Bank of China for the same period, with reference to the calculation standard of overdue penalty interest rateIf the default occurs after August 20, 2019, the overdue payment loss shall be calculated by 30%-50% based on the one-year loan market** interest rate standard published by the National Interbank Lending Center authorized by the People's Bank of China at the time of the default.
In private lending, the lender may claim that the borrower shall bear the liability for overdue repayment with reference to the interest calculated with reference to the prevailing one-year loan market interest rate standard from the date of overdue repayment.
For other types of contracts, if there are no corresponding special provisions or contractual agreements, the relevant provisions of the sales contract may be referred to.
In the process of handling similar cases, the author believes that there are three points that can be noted:
First, clarify the starting date of overdue interest and submit the corresponding evidence for the judge's reference.
Second, clarify the interest rate standard and specify the applicable interest rate. In the case of LPR, specify the specific interest rate;If it is a multiple payment, if it is to be distinguished, different LPR interest rates should be applied separately;If you want to add the percentage, calculate the interest rate after the additional percentage.
Third, if the interest rate agreed in the contract obviously exceeds the compensation loss, it can be adjusted on its own initiative or adjusted by the court.
Fourth, if multiple debts are involved, a late payment loss calculation table can be prepared with an explanation of the calculation.