On The Judicial Application Of The Doctrine Of Change Of Circumstance

The doctrine of change of circumstances has experienced several hundred years of evolution from the initial embryonic, has been recognized by the laws of some countries. The study on the doctrine of change of circumstances began in the 1980s in our country. During the preparation of the new contract law, whether the doctrine of change of circumstances should be included in the principles of contract law had become a hot debate. Although the final decision to abandon the legislature, we can not deny the existence of the change of circumstances. Under such circumstances, we must focus on the correct application of the doctrine of change of circumstances. In this paper, the text is divided into three parts. The first part introduces the establishment and development of the doctrine of change of circumstances. The second part researches the necessity and legal basis of the judicial application of the doctrine of change of circumstances in our country. The third part discusses the conditions and restrictions of the judicial application of the doctrine of change of circumstances in our country.The first part introduces the establishment and development of the doctrine of change of circumstances in the civil law, for example German law, France law ,and the doctrine of frustration in the common law. The contract law in China eventually abandoned the doctrine of change of circumstances, but the change of circumstances in Chinese law should not be overlooked.The second part is devoted to research the necessities of the doctrine of change of circumstances in the judicial practice firstly. On one hand, the application of the doctrine of change of circumstances in judicial practice is the pursuit of real justice to the needs of modern civil law. The doctrine of change of circumstances avoids an unfair result, embodies the essence of the law in the pursuit of justice and fairness. On the other hand, the application of the doctrine of change of circumstances in judicial practice is the need of development of our judicial practice. Change of circumstances is not always the case, but it does exist. Secondly, in view of our existing contract law does not provide directly, change of circumstances in the case on how to apply the law, is a special type of contract against the law to abide by its provisions, such as the Contract Law of the PRC. 231st. If not specifically, the application of the principle of Fair can be resolved. For foreign contract dispute apply the"United Nations Convention on Contracts for the International Sale of Goods''or the"International Commercial Contracts"of the relevant provisions. If not special provisions of the law, the principle of good faith and fairness can be applied to deal with the cases of change of circumstances.The third part discusses the conditions and restrictions of the judicial application of the doctrine of change of circumstances in our country. The doctrine of change of circumstances must strictly adhere to the principle of contracts as a way to alleviate the harsh nature of pacat sunt servanda. Results must be serious violations and to what extent the doctrine of change of circumstances will be considered to remove the contractual obligations. Thus, it applies only in specific circumstances. Firstly, the application conditions of the doctrine of change of circumstances includes the precondition, subjective condition, objective condition and time condition, these elements must be in place, can be applied. Secondly, the restrictions applicable the doctrine of change of circumstances, including to limit the right of judges, the definition of change of circumstances, scope of the application , applicable standards and effects.Finally, with the development of society, the volatility of economic activity, change of circumstances is an objective existence. From a practical viewpoint, our courts have accumulated a certain amount of experience, in theory, our scholars have made certain achievements in theoretical research. Practice to provide guidance for trial, moreover, foreign relevant to the trial experience and theoretical results can provide a useful reference. We have reasons to believe the court would apply the doctrine of change of circumstances to resolve the issue of the performance of contract correctly.