The Study On The Applicability Of The Regime Of Changed Circumstances In China’s Judicial Practice

The regime of changed circumstances refers to the contract existing conditions andenvironments, which are changed or disappeared due to some unpredictable or the forcemajeure reasons that does not belong to the commercial risk after the legal contractestablishment and before its complement.If keeping perform is obviously unfair or cannot achive the purpose of the contract, in this sense, one of the parties has the rights torequire the court or arbitration institution to change or terminate the contract. Based onthe principle of justice and combine the practical situation, the court should make ajudgement whether change or terminate the contract or not. The regime of changedcircumstances didn’t established in The Contract of People’s Republic of China(abbreviated as Contract Law), until2009, it was formally confirmed by the SupremePeople’s Court in the implemantation of the Contracr Law. However,this principle wasinstituted by the form of judicial explanation,which is imperfect in some aspects, forinstance,there are some problems as unclear defination between circumstance and theforce majeure, the procedural defects that exist in the application of the changed ofcircumstance, and the complicated situations in juridical practice. All of that cause theproblem exist in the application of this rule in judicial practice. What the characters ofcircumstance change, what problems it exist, and how to perfect this rule，The main ideaof this thesis is to focus on such problems and find ways to deal with it.The thesis mainly applies the method of case analysis. By analyzing cases in lastthree years since the erection of the changed circumstance system, it tries to find out itsfeatures and conclude the problems in juridical practice. In addition, based on the pointsof theory circle, it attempts to provide some acceptable suggestions for the applicableconditions, legal results, procedures and principles of the system in legislative andjuridical practices from the legislative and practical angles.Firstly, it introduces the theoretical bases of the changed circumstance system, including the meaning and main points of view in theory circle. And next introduces theapplicable situations of the system in juridical practice. By analyzing the applicable casesin juridical practice, it concludes the general situations, features and problems in practice.Combined with the analysis of the cases, it discusses the relationship between changedcircumstance system, its relevant principles and conception. This part mainly figures outthe differences between the conception and principles, such as contract trust andfreedom, honesty, justice, force majeure and business risk. At last, it discusses theperfection of the application of this system, including legislative and juridicalprocedures, the improving suggestions of loss sharing and judicial discretion after theapplication of the system.