Research On The Principle Of Circumstance Change

Change of situation is also called a "change of situation the defense", "disclaimer" change of situation, its elegant system designed to balance the interests of the parties to the contract provides a more comprehensive protection, it is the principle of good faith in civil and commercial law in the field of specific applications. This article is primarily taken by comparison, by legal norms of comparative research on the common law and civil law in frustration made system and sufficient comparison and analysis, theory with practice, from comprehensive annotation of frustration, and on the legal provisions that are relevant in order to comment on the on the improvement of the law in the frustration of opinions, better protect the rights, protection of the parties to the transactionIn essence, the civil law and common law frustration content almost unanimous, however, there are different points: Anglo-American law stressed the price relationship and implied terms, but method does not have these two requirements. In addition, compared to civil law, common law in the frustration of the scope is wide. Through a series of comparison, the conclusion: the introduction of frustration is necessary, frustration can help to balance the interests of parties, in order to avoid unfair, better reflect the principle of good faith.In addition to the introduction of this article, is divided into five parts: the first part of the frustration of change and development. The first describes the ancient Roman law establishes the contract shall strictly adhere to the rules, that the validity of a contract not objective situation. In the 16th-17th century, the popularity of natural law, many natural Jurists also suggested a change of situation the terms of thought, such as branch Eyzies and even frustration throughout the basic spirit of the legal order. And then illustrates the frustration of many theories, but frustration of rationale should be the principle of good faith. Last also illustrates the frustration in the common law and civil law system of the major countries of the legislative situation. France has not been confirmed in law in frustration. Germany expressly adopted the frustration. The United Kingdom and the United States established the frustration. In 1981, the economic contract law (article 27 of the rules provides the frustration, but in 1993 of the economic contract law also cancel this section. China's contract does not stipulate the frustration.The second part of the first to the civil law scholars, common law scholars and Chinese scholars on the definition of the concept of Change of Circumstance, but also pointed out that the slight difference between them. Change of circumstances refers to the so-called principle of contract law since the establishment and effective, not because the parties or the fault of the intentional change of circumstances occurred, resulting in the contract the parties can not fulfill the contract or if the performance of the contract will result shows fair, so in good faith, the parties of course may request changes to the contract or terminate the contract. And then describes the principle of changed circumstances and the significant difference between related concepts. And then describes the essence of the principle of changed circumstances, stressing the principle of changed circumstances is a breakthrough contract observe the spirit, its essence is the principle of good faith to restore the basis for change of circumstances leading to the loss of trade resulting from the unfair result is the principle of contractual freedom, fairness and justice principles embodied. Change of Circumstance essence, is implementing the principle of good faith to eliminate the contract due to changed circumstances caused by the imbalance of interests. Finally on the principle of changed circumstances doctrine.The third part of the first analysis of the conditions of use for frustration includes: must have a change of situation of fact; change of situation must occur in the contract; change of situation should not be attributable to the parties of the change of situation arises; must be non-Parties expected and unexpected nature; after the change of situation maintained the original contract unconscionable. And then explains the legal effect of change of situation. First, changes to the contract.. It includes: increase or decrease its subject; deferred or staging fulfillment; denial of first to fulfil; second, rescind the contract.The fourth part of the first analysis of the frustration of the legislative situation in our country is that the legislative level, whether it be the judgment or the contract law, only on the principle of the good faith, but there is no requirement in frustration. The judicial level, frustration by the positive recognition and applies, this case before the Court and the Court applies the internal working documents in two areas. The second illustrates the establish the necessity of frustration and establishing frustration system, underlined the need for establishing frustration of necessity and urgency. The final reason to frustration in the legislation of our country.