The Application Of Circumstances Change Theory In The Policy Defaults Of The Real Estate Deal

People get more attention to the housing problem since the outbreak of price, persistent increases and its significant impact on people's lives. In order to curb the momentum of housing prices, the State Council issued a series of policy controlling the real estate, such as the "National ten", "National five",the new "National eight" and so on. As macro-control efforts began to gradually increased, the local governments also had adopted many strong macro-control measures, such as increasing the proportion of home loans down payment, improving the payment of the second and above mortgage, and limiting the purchase of copy number and exotic dwellers's purchase. That is the" New Real Estate Deal",the introduction of which have made some effects, and triggered a large number of defaults and check-out tide of housing sale contract at the same time.In these cases, the defaulting party is the buyers always, and the factual basis is the market regulation policy in the New Deal real estate,they claim it as " Policy Defaults"and ask to terminate contract and return deposit.But in practice,there is controversy about the identification of the legal basis, mainly concentrated in three areas, which is the circumstances change theory, force majeure, and the principle of commercial risk.In 2009, the Supreme People's Court of China promulgated the Judicial interpretation(two) about the application of contract law of the People's Republic of China, determining the circumstances change theory for the first time. But due to a late start, the applicable procedures and criteria for judging are not clear,and when compared to force majeure and the principle of commercial risk, the legal boundary is fuzzy. In judicial practice, it results the discretion of the judge larger and different judicial decisions. In order to solve the disputes caused by the new real estate deal, it is necessary to clarify the suitable conditions and procedures of relevant legal system, providing a legal basis for cases of real estate disputes trials.Based on the real estate deal background,this article is divided into four chapters to discuss. The first chapter introduces the background and the various measures and disputes to this kind of policy defaults,analyzing the characteristics of policy defaults in real estate deal; the second chapter clarifies the applicable conditions of the circumstances change theory,analyzing the similarities and differences among force majeure, commercial risk,the circumstances change principle, which sends the theoretical basis for solving the practical problems; In the third chapter, By the method of case study, the author puts forward suggestions of how to apply the principle of changed circumstances aiming at the difficulties to fulfill and the policy obstacles of mortgage loans and the restriction and ban to purchase; the fourth chapter is the focus of this paper, in order to make a clear explanation of an effective solution to theses problems,the author construct the basic idea of how to apply circumstances change theory in the situation of the policy breach under the New Deal and its specific judicial procedures and the legal consequences of applying circumstances change theory.This paper believes that, in the breach of contract disputes caused by real estate deal,only to increase the proportion of down payment loans and raise interest rates, does not necessarily lead to the buyer can not continue to perform the contract, should be identified as belonging to a normal business risk,the contract should continue to be performed, but if you buy a house can prove that continue to perform contract will make serious effect to your economic situation and unable to normal life, you can claim it as the applicable situation of the principle of change circumstances and ask to terminate the contract; If the new real estate deal is the policy limiting the rights, such as "limiting credit ", "limiting sales", at this time, the contract-based environment has occurred abnormal change, and there would be obviously unfair if continued with the contracts, then it should be recognized as the circumstances change, the buyers can dissolve or change the contract without incurring liabilities. Meanwhile, in view of the particularity of the circumstances change theory, we should consider many factors,different main body levels, strict observance of the legal procedure, reasonable use of judicial discretion and be strictly and prudent when dealing with the contract disputes applied the circumstances change theory in Real Estate Deal.