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The Application And Improvement Of Principle Of Changed Circumstances In China

Posted on:2015-03-03Degree:MasterType:Thesis
Country:ChinaCandidate:L XuFull Text:PDF
Abstract/Summary:PDF Full Text Request
The principle of change of circumstances as an important principle of contract law, in theoverseas, has been a mature application, played an important role, and has been recognized bymost countries through legislation, precedent. Our newly revised "Contract Law" at thebeginning of the legislation because of the application of the principle concerns without theformal written legal principles, but many scholars for the academic study of the problem hasintensified, made many perspective, on the principle of changed circumstances connotation,applicable conditions, the force of law and reached a consensus to strengthen our research andnormative principles of changed circumstances theory. This paper based on the problemsexisting in the establishing process of the principle of changed circumstances and the judicialapplication, studied the connotation, the applicable conditions and the problems in theapplicable process, and also discusses the legal effect caused by the changes of circumstance.The principle of change of circumstances refers that, after the conclusion of the contractand before the performance, for reasons cannot attribute to the parties, the objective situationchanged dramatically, and leading to the contract can not be performed or obviously unfair toperform, so the party was allowed to request to change or cancel the contract. The rights ofthe parties from the law should be limited, and the applicable conditions of the principle ofchange of circumstances should be defined to prevent the misuse and the abuse of discretionof the judges; its applicable conditions should include five aspects: objective conditions,subjective conditions, time conditions, reasons conditions, results conditions.The contract law of China has not officially established the principle of change ofcircumstances, but in the judicial practice, the principle was very early applied to solve thedispute caused by the changes of circumstances. The contract law of our country does notmake provisions of the principle for many reasons, both the erroneous understanding oftheoretical concept, and the obstacles made by the deviation of trial practice. Now, ourcountry adopted the "contract law" judicial interpretations two and relevant guidancepromulgated by the Supreme Court, and with the civil law of good faith and fair principles promulgated by the Supreme Court shall be applicable, but the problems of the application ofthe principle was not specified, easily lead to the abuse of this principle. After China’saccession to WTO, the rapid development of market economy, leading to a contract under avariety of unexpected situations can not be performed, with the construction of the rule of lawand international standards, the application of the principle of the situation to change moreurgent. Therefore, China should improve relevant laws as soon as possible in order to makethe principle of changed circumstances to get its rightful place. For the legislation of theprinciple, the author thinks, should learn the legislative experience of advanced countries inthe world, at the same time, and combined with China’s specific conditions, from the twoaspects of legislation and legislative contents to provide the principle.
Keywords/Search Tags:Circumstance Change, Applicable Conditions, Legal Effect, Legislative Perfect
PDF Full Text Request
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