On Change Of Circumstance

Change of circumstance means that after the contract has been made some objective circumstances cause abnormal changes which are unexpected by the litigants and lead to the unbalance between obligations and rights of the litigants ; in these cases litigants canask the court to make some changes or remove the contracts when agreements concerning the contract can not be reached. In this article, I will put forward my opinions about construction and improvement of change of circumstance in our country. I will start from the development and evolution of change of circumstance in system of civil law and analysis will also be made concerning basic theories, applicable conditions and effects in law of change of circumstance, taking the legislation and judicial conditions into account, too.The body part is as follows:1 The historical continuation and reforms of change of circumstance in system of civil law will be discussed. Change of circumstance took its first appearance in Rome Law. Nevertheless, its application is rather limited and it didn't form an independent rules and system in law due to the strictness of contracts in line with principles. Change of circumstance became the generally applicable rules in law in the 12th century and 13th century by the efforts of glossators. Change of circumstance is not bound by the form of contracts and seeks substance and equality, which conform with the essence of Natural Law; therefore, it is welcomed by the school of Natural Law and enjoys development boom with the prosperity of the school. Whereas, with the school of Natural Law on the wane since the late of 18th century ,the impact of change of circumstance was getting weak. As a result of the two World Wars in the 20th century, great changes occurred in social life. In order to solve the contracts disputes caused by those dramatic changes, change of circumstance, with its theoretical excellence, was adopted by legislation in every country.The theories that the change of circumstance is based on will be discussed in the second part. During the development of change of circumstance in system of civil law , there are mainly four views about the theoretic basis: unpredictability Theory, Premises Theory, the basic theory of act of law and Honesty and Credibility Theory.When seen from the origination, the solutions and the meaning of existence, change of circumstance is the specification of Honesty and Credibility principle in the field of contract law. Change of circumstance solves the problem of overburdening of Honesty and Credibility on one hand, and specifies the standards of the unbalance between obligations and rights due to the abnormal changes occurred in some objective circumstance. The fact that Honesty and Credibility principle is the theory basis of change of circumstance not only is theoretically complete but also guides and restricts change of circumstance. Naturally, Honesty and Credibility principle should be the theoretical basis of change of circumstance.The third part is devoted to the application of change of circumstance and summarizes it concept of change of circumstance. Firstly, I make some analysis on the application conditions of change of circumstance: the objective existence of change of circumstance, namely, it is an objectively existed fact that actually happens; timely, change of circumstance happens after the contract has been made; change of circumstance is unexpected by the litigants, which is not prefigured and can not be prefigured by the litigants when the contracts are being signed; the two parties are not to blame for the happening of change of circumstance, which is that the both parties commit no fault for the change of circumstance, and the change of circumstance is unforeseeable and irresistible by the two parties. change of circumstance leading to the severe unbalance between obligations and rights of the litigants, that is the continuation of the original contract is unbearable to obligor; agreements that run counters to the contracts and law are nonexistent. Then attention is drawn to the legal effects of change of circumstance, which is the litigants have the duty to negotiate again and can claim to the judicial department to alter or remove the contract when no agreements can be reached to adjust the contract. Finally, the conclusion about change of circumstance is being made based on the above ideas. It means that after the contract has been made, some objective circumstances cause abnormal changes which are unexpected by the litigants and lead to the unbalance between obligations and rights of the litigants ; in these cases litigants canask the court to make some changes or remove the contracts when agreements concerning the contract can not be reached.In the fourth part ,the difference between change of circumstance and the related system is analyzed. change of circumstance does not stand alone, and it is influenced by related legal system, and likewise, the application of change of circumstance will have an impact on the related law. change of circumstance differs with irritable force, big misunderstanding and unfairness in application and legal effect. Nevertheless, the distinction is sometimes not clear, so only with correct understanding of their relations can it apply to correct legal system.In the fifth part, I look into the current situations of change of circumstance on the part of legislature and judicature, and raise my own opinions on its construction and improvement. Legislatively, Contract Law of the People's Republic of China does not write out the general rule about change of circumstance; only labor contract law of the People's Republic of China states the obligatorily rules of change of circumstance; in contracts concerning foreign affairs, it applies to the tough implement conditions in UPICC. Compared with the stagnation of legislation, change of circumstance improves a great deal in judicial practice. Especially, in the Supreme People's Court makes some explanations on some problems that are applicable to on the contract law of the People's Republic of China(2), which provides chances for the development of change of circumstance. It is necessary and feasible of the legislature of change of circumstance in our country. On the part of legislation, general rules should be made upon change of circumstance in corpus juris civilis or contract law and the time of change of circumstance should be stipulated after the contract is made. What's more, the application of change of circumstance should be in the order of renegotiation, alteration and invalidation. On the part of judicature, compensations to the legislature should be made through the explanations of judicature, and guides the application of change of circumstance by way of improvement of change of circumstance theory.At last, I come to my conclusions. change of circumstance has become an important part in legal system in mainland. It plays an crucial role in the balance of obligations and rights of litigants and goal of achieving real fairness. When compared with Germany representing the countries where continental legal system prevails, our legislation and jurisdiction of change of circumstance have been left behind. Therefore, we should use the advanced experience of foreign countries for reference and improve and build our change of circumstance system on both parts.