On The Principle Of Change Of Circumstances In The Application Of Contract Of Land Subcontract

The supreme people's court on the applicable < contract law of the People's Republic of China >(2) the explanation of some issues "(hereinafter referred to as the" contract law judicial interpretation 2) article 26 clearly established the principle of changed circumstances in China contract law, but the principle of changed circumstances in all kinds of how to apply for in the contract specific situation and present some differences. In the contracted management of land in the subcontracting contract dispute, the supreme people's court on some issues related to rural land contracting disputes applicable law the explanation of"special provision of article 16 of the solution when the situation changes. That is to say, the principle of changed circumstances in the contracted management of land in the subcontract is applicable, of course, the specific applicable general condition is continue to perform the contract is unfair. However, right to the contracted management of land subcontract, as the creation of secondary contracted management basis, in the concrete process of the principle of changed circumstances, and difference from that of other contracts. First of all, you must get the right to the contracted management of land in the subcontract standard of unfair, have considered the possibility of changed circumstances. Second, must on the national implementation of favorable policies for accurate qualitative, the right to the contracted management of land in the subcontract, the national implementation of favorable policies may belong to commercial risk, may also constitute a material adverse change. Finally, shall ensure that the principle of the changed situation in the contracted management of land in the subcontract to apply legal and reasonable.In the contracted management of land in the subcontract, show unfair to decide whether to continue the contract, should carry on the economic cost accounting, the accounting after have a combination of the increased cost of "performance" and "serious loss of two elements,these two elements combination of compound proposition of" P and Q, "can be regarded as unfair, if only to set up a elements P or Q, will not be regarded as unfair. In the contracted management of land in the subcontract, to distinguish is changed circumstances or business risk benefit farming policy, should first give favorable policies to classify the risks posed by the parties, according to whether or not foreseeable, divided into "the foreseeable risk"and "unforeseen risk". According to the ability to withstand the parties, is divided into the riskof "affordable" and the risk of "unsustainable". Then the first two kinds of risk and risk of the latter two are combined, combined into four kinds of different situation, eventually determine whether the risk of favorable policies can constitute a material adverse change. In addition,the right to the contracted management of land in the subcontract for processing, and subsidies for this contract will constitute a material adverse change.Principle of changed circumstances though originated from the principle of good faith,its connotation and denotation is uncertain, may be given at the discretion of the judge greatly,but in the case of the conform to the changed circumstances must apply the principle to change or remove of the original contract, especially in the variety of right to the contracted management of land subcontract wide audience and special in the contract. In the judicial practice, to meet the situation changes, the court shall expressly argument in the written judgment, rather than because of fear of "trouble" and bypass the principle of changed circumstances, is applied honesty and credit principle, fair principle, or other requirements of the contract law judge.This paper focuses on the situation change principle in the right to land contractual management subcontracting contract applicable are discussed, the article is divided into four parts:The first part is a typical case, this part mainly describes a typical case of the case, the court in dealing with the case of first instance, second instance and retrial and again trial results, based on the results of two level court referee, extract the focus: land contract the right to operate the subcontract manifest fair cognizance standard, Huinong policy can constitute changed circumstances.The second part is the jurisprudence analysis of the issues related to, this part focus on the two focus of the case and start. First briefly discusses the principle of change of circumstances, then the right to the contracted management of land subcontracting contract manifest fair standards of. Finally, on the agricultural policy of qualitative discussed.The third part is to think about the case, this part is mainly based on the case, combined with the previous theory, the focus of the study.The fourth part is the Enlightenment of the case study.