| When jurists submitted the legislative motion of contract law in 1993, clausula rebus sic stantibus has been a hot topic ever since then.The Contract Law of the People's Republic of China was adopted at the second meeting of the 9th National People's Congress on March 15,1999. According to the contract law draft review report presented by the NPC Law Committee," ……III. The principle of clausula rebus sic stantibus. This is a very complex problem and there were different opinions in the process of making the law. At this reviewing meeting, many representatives put forward that based on the current experience it is difficult to make a scientific definition of clausula rebus sic stantibus and make a clear distinction with business risk, moreover, it is more difficult to enforce it, therefore it is not ripe to provide it in the contract law now though there may exit very special cases where clausula rebus sic stantibus can be applied to. The law committee suggests not making a provision on it after cross study. …… " Therefore, the contract law did not prescribe clausula rebus sic stantibus. However, what's on earth the necessity of the principle of clausula rebus sic stantibus and what is its value? The writer tries to find out its source and evolution from the perspective of comparative study, thereby further analyze the obstacles to introducing the principle of clausula rebus sic stantibus into our contract law and finally put forward the possible solutions by means of making a study on both domestic and foreign related typical cases.There are total six parts including the preface as Chapter 1 and the conclusion as Chapter 6.In Chapter 2, through comparing the legislative history and status quo of various civil law countries, the thesis introduces the source and evolution of the principle clausula rebus sic stantibus. It is recognized by civil law countries through legislation or cases that the principle of clausula rebus sic stantibus indeed embodies the principle of good faith in obligation law. However the opinions of civil law countries on defining the scope of clausula rebus sic stantibus are different.Represented by the Civil Code of France, there is no difference between clausula rebus sic stantibus and force majeure( see Article 1148 of the Civil Code of France);While the civil theories and judicatory practice of Germany tries to differentiate clausula rebus sic stantibus from force majeure (See Article 157, 242 of the Civil Code of Germany, etc).In the legal theory of our country, the principle of clausula rebus sic stantibus is recognized generally.In the case of Wuhan Coal Gas Company V. Chongqing Instrument Examination Factory on the matter of violating the technique transfer contract and sale contract in 1992, the principle of clausula rebus sic stantibus was formally applied to in our judicatory practice for the first time.It has important impacts on the theory, the legislation and the practice. The National Economic Trial Session Summary promulgated by the Supreme People's Court on May 6, 1993 pointed out: Because of reasons couldn't attribute to two parties, the circumstances, as the root of a contract, have substantially changed, which is beyond thepredictability of two parties. As a result, it is unconscionable to continue to perform the contract so that the contract can be altered or revoked according to the principle of clausula rebus sic stantibus based on the parties' application. Although it is not an judicial interpretation in terms of legal effectiveness, the Summary, considered as the fixed legal opinion formed through trials, can be adopted by the courts at all levels and thus has its legal binding force in fact.In Chapter 3,the thesis brings up the difficulties in introducing the principle of clausula rebus sic stantibus. From the discussion process of contract law draft, there are two aspects of the obstacle: One is theoretical obstacle and the other is practical obstacle. In terms of theory, the writer compares the principle of clausula rebus sic stantibu... |
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