Abstract: There is a theoretical controversy over the nature of the element of excessive liquidated damages, which affects the identification of the facts of the element and the allocation of the burden of proof, and which needs to be further clarified. Excessive liquidated damages is a legal concept of uncertainty, requiring the court to synthesize a variety of factors for case-by-case judgment. In the litigation law, excessive liquidated damages is an evaluative element, which needs to be specified before applied. This application process is not “inclusion”, but “categorization”. This also dismisses liquidated damages itself as an element of fact. The specific factual (obstruction) facts supporting the evaluation of excessive liquidated damages constitutes the elementary facts. Such facts exhibit quantitative characteristics, necessitating typological treatment and judicial clarification by the court. A penalty exceeding 30% of the actual loss and a party’s malicious breach of contract constitute statutory facts for evaluation basis and evaluation impediment, respectively. Regarding the allocation of the burden of proof, whether a penalty is excessive is a matter of legal evaluation and is not subject to the burden of proof. However, the burden of proof does apply to the factual basis for evaluation (including impediment facts): the breaching party claiming that the penalty is excessive bears the burden of proving the facts supporting this evaluation, while the non-breaching party opposing the claim bears the burden of proving facts that impede such evaluation. Meanwhile, the burden of proof on the parties may be alleviated through methods such as shifting the object of proof and judicial determination of the amount of damages.