On The Establishment Of Changed Circumstances Rule In Chinese Civil Law

It is no good of maintaining the social essential justice that there is no provisions of Changed Circumstances Rule in Chinese civil legislation, the researcher opens out the necessity of stipulating Changed Circumstances Rule in Chinese Civil Law in both theory and reality, through orientating the nature of Changed Circumstances Rule newly, discussing the jurisprudence foundation on the existence of Changed Circumstances Rule, analyzing the irreplaceability on function of Changed Circumstances Rule, evaluating and analyzing the main reason on denying Changed Circumstances Rule, and discussing the need of solving the contract disputes in the period of "SARS". And the researcher designs the concrete provisions of establishing Changed Circumstances Rule in Chinese Civil Code by the evaluating and analyzing the articles of Changed Circumstances in the Proposal on the Draft of Chinese Civil Code editing in chief by LiangHuiXing. At the same time, the researcher analyzes the problems need to be solved in relation to stipulating Changed Circumstances Rule. The text is composed of three chapters. In the chapter one, the researcher orientates the nature of Changed Circumstances Rule newly. First of all, according to comparing Changed Circumstances Rule with principle of legality, Changed Circumstances Rule is short of the attributes as principle on character: broader coverage rate and the guidance in macroscopy; on function, it is short of the function of principle of legality: guiding legal explanation and legal reasoning; supplementing legal loophole, strengthening the ability of regulation and control of law; limiting the rational range of judicial discretion. Pointing out Changed Circumstances Rule cannot be a principle of performing contracts. Secondly, the researcher analyzes the differences between Changed Circumstances Rule and common rule. On character, the contents of common rule are explicit and concrete, but the contents of Changed Circumstances Rule have retractility; on function, Changed Circumstances Rule has broader coverage rate and less maneuverability than common rule. So the researcher points out Changed Circumstances Rule is different from common rule. Thirdly, from the production of equity legal system of England, the researcher analyzes the idea of equity: realizing essential justice, thinking that Changed Circumstances Rule assures that the party in the good location can't utilize the good location and threaten the other party, when special circumstances that make the interests of both parties overbalancing take place. Both parties should adjust the contents of legal relation by negotiation to balance the interests of both parties newly. So Changed Circumstances Rule belongs to equity rule. At the last, the researcher analyzes the character of Changed Circumstances Rule: non-regulatory, mistiness, supplementary and force. Chapter two analyzes the necessity of introducing Changed Circumstances Rule to Chinese Civil Law. Firstly, the researcher thinks that stipulating Changed Circumstances Rule is the need of the commercial practice in reality, that has the great significance of dealing with the contract disputes, such as the contract disputes that produced by "SARS". Secondly, in respect of the need in theory, Changed Circumstances Rule is an exception as "abidance to the contract principle", that is accepted by laws of many countries, and is the need of realizing both formal justice and essential justice in special circumstances, and has the deep jurisprudence origin. Thirdly, through the differences between Changed Circumstances Rule and force majeure system, significant misunderstand system, the obvious unfairness system, principle of good faith, and through the differences between Changed Circumstances and normal commercial risks, the researcher explains Changed Circumstances Rule has the irreplaceable function of remedying defect and plugging the gap. At the last, the researcher discusses the necessity of stipulating Changed Circumstances Rule in Chinese Civil Law through the evaluation and analysis of the reason on denying Changed Circumstances Rule. In the chapter three, the researcher conceives the orientation of Changed Circumstances Rule in Chinese civil legislation. First of all, the researcher chooses the legislative pattern, and points out establishing Changed Circumstances Rule through special law or legal precedent is not appropriate.But establishing it through Civil Basic Law can remedy the deficiency of the first two legislative pattern, at the same time, the draft of Chinese Civil Code has been issued, so I supposes establishing Changed Circumstances Rule in Chinese Civil Code in future. Because Changed Circumstances Rule applies to the contract field mainly, I suggest it should be stipulated in general provisions of contract in Civil Code. In respect of the legislative aim, Changed Circumstances Rule aims at dispelling the unfairness consequences because of the special circumstances, adjusting the rights and obligations of parties again, dispelling the obstacle of performing contract, in order to go on performing the contract. So Changed Circumstances Rule should be stipulated in the chapter of contract performing. Secondly, the researcher evaluates and analyzes the articles of Changed Circumstances in the Proposal on the Draft of Chinese Civil Code editing in chief by LiangHuiXing and designs the concrete provisions of stipulating Changed Circumstances Rule in Chinese Civil Code. At the last, the researcher discusses the main problems in relation to stipulating Changed Circumstances Rule. The first one is the judicial discretion of judges. In order to prevent judges abusing the judicial discretion, the researcher thinks that supervising the judicial discretion of judges can be carried through the legislative provisions, introducing the legal precedent law mechanism, reforming the modes of making judgments, and strengthening the supervisions by public to the judicial activity. The second one is the differences between Changed Circumstances and normal commercial risks. Not judged by the fluctuations of the price simply, whether it is the normal commercial risks or Changed Circumstances. It can be regarded as the normal commercial risks that the overbalancing of interests caused by autonomy of contract parties, that can't injure or threaten the social interests, the whole economic benefits, and can't surmount the limit of the idea of market economic fairness. The third one is applying the procedure safeguard system of Changed Circumstances Rule rightly. Firstly, I think Changed Circumstances Rule should follow parties'doctrine. The contract can be changed by parties of their own accord first, when it doesn't succeed, then the parties can ask the court to change or release the contract. Secondly, the researcher thinks that when the adjustment of the contract relationship...