Research On The Application Of Changed Circumstances

In the contest of deepening economic globalization,factors affecting transaction stability have increased,and the market economy's demand for the precise application of situation change systems has increased.The function of the situation change system is that after the contract is established,when the foundation of the contract is formed and the interests of the parties to the contract are seriously imbalanced due to abnormal circumstances,a consensus is reached through the system to terminate the contract or change the contract.The purpose is to maintain the order of the transaction and achieve fairness in the transaction.The provisions of the situation change system in China are established in the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the" Contract Law of the People's Republic of China(2)"(hereinafter referred to as" Judicial Interpretation of Contract Law(2)").In response to economic development needs,it now appears in the "Civil Code Contract(Draft)".At the beginning of the establishment of the system,there was the problem of unclear identification standards and legal consequences,which caused confusion in the application of specific laws.The root cause of the problem is that our country does not have a deep understanding of the theory of contract performance exemption system and the theory of basic flaws in the transaction at the theoretical level.The judicial interpretation of China's contractlaw adopts an exclusive and framework approach to stipulate the applicable conditions of the situation change system.The provisions of the current legal provisions are too general,trying to clarify the difference between changes in circumstances and business risks,but at the same time,the provisions are too general and vague,and do not clearly clarify the relationship between the two.The situation change system has unclear connotation,confusing nature definition,and lack of specific operability,which leads to the situation change system being easily abused and difficult to apply in judicial practice,which gives judges greater discretion.It can be seen from the collation of the judgment documents that the results of the application of legal judgments in courts in judicial practice are very different.How to clearly grasp the applicable conditions of situation changes is still an urgent problem to be solved.Based on a comprehensive and profound understanding of the situation change system in the two major legal systems,we can absorb and learn from basic theories of transactions,unforeseen theories,contract frustration and other theories and combine with China's actual situation to improve the application of the situation change system.Secondly,it is necessary to introduce legal or judicial interpretations to clearly define situation changes and business risks,and regulate the applicable standards,conditions,and processes of the situation change system.It can also draw on the "renegotiation" in the International Commercial Contract Law.At the same time,in order to guarantee the autonomy of the parties,it should be characterized as a pre-procedure,which is not a realobligation.The parties have the right to decide whether to choose renegotiation as a pre-procedure for the judge to change or terminate the contract.When the contract can be changed,the judge can only determine the contract change plan on the premise that the content provided by the parties is reasonable and obtains the consent of both parties.In other cases,the judge may not take the initiative to determine the content of the change.When the change plan is unreasonable,the parties may choose to terminate the contract.At the same time,in order to limit the discretion of judges,different types of cases applicable to the principle of situation change can be typified,and the study of guiding cases of the Supreme People's Court can be strengthened to provide an authoritative reference for judges to regulate the exercise of discretion.