On The Doctrine Of Change Of Circumstances In Contract Performance

China's provisions on the doctrine of change of circumstances are relatively simple,only stipulating the Interpretation of Certain Issues in the Contract Law of the People's Republic of China(2)(hereinafter referred to as “Interpretation of Contract Law(2)”,and appearing in judicial applications of the corresponding question.Therefore,the academic circles suggest that it be improved and incorporated into the Contract Law.Today,The first review draft of the Contract of Civil Code(Draft),the second review of the Contract of Civil Code(Draft),the third review draft of the Contract of Civil Code(Draft)has stipulated the doctrine of change of circumstances,but the provisions of the three review drafts are all different,and the problems related to the doctrine of change of circumstances have been raised again.Although all three Contract of Civil Code(Drafts)have been stipulated for the doctrine of change of circumstances,there are imperfections that require further discussion.This thesis is divided into four chapters that elaborate and analyze the issues related to the doctrine of change of circumstances:The first chapter is an overview of the doctrine of change of circumstances.It mainly discusses the legal theoretical basis of the doctrine in the civil law system and the common law system and prove that this doctrine is justified and reasonable as a solution to the difficulty of contract performance.Regarding the connotation of the doctrine of change of circumstances,the perspective of this article is to first interpret it in text,and compared with other scholars' definitions of the doctrine,This article proposes a detailed definition of the doctrine.And then deeply interpreted the doctrine of change of circumstances,analyzing the relationship between the doctrine and irresistible force,business risks,and apparent unfairness in combination with relevant cases.The principle and irresistible force can be distinguished from four perspectives;the "commercial risk" in Article 26 of China's "Interpretation of Contract Law(2)" is a subjective business risk,so it should be carried out in specific cases.The second chapter is the status quo of the legislation and the judicial applicationof the doctrine of change of circumstances.With regard to the legislative status quo of its.It discusses the evolution of the legislation before the Contract of Civil Code(Draft)and the brief evaluation of the contents of the three reviews of the Contract of Civil Code(Draft).It has certain things that are worthy of recognition and imperfections.With regard to the judicial application of this doctrine,the applicable elements and legal effects of the doctrine are discussed.The applicable elements of the doctrine include not only the analysis of the provisions of the in Interpretation of Contract Law(2);there are implicitly applicable elements in judicial practice as well.The first is the irresponsibility.The doctrine mainly include alternation of contract and termination of contract,there have been corresponding problems in the application of legal effects in judicial practice.There are no specific criteria for alternation of contract;in addition,most parties make the filing of a lawsuit requiring that the contract be terminated.The resolution of this issue requires clarification of the relationships among renegotiation obligations,alternation of contract and termination of contract.The third chapter comparison of the doctrine of change of circumstances and other laws.This chapter mainly examines the applicable elements and legal effects of this doctrine.The civil law system examines inspect Transaction-based barrier system of German and doctrine of change of circumstances in Taiwan and Japan,there is something to learn from.The common law system examines the frustration of contract of the British,It divides the types of frustration of contract into three types.It is difficult for China's doctrine of change of circumstances to have a complete type classification or exhaust its types,but this approach is worth learning from.International uniform contract law examines the situation of hardship of CISG,it is different from the applicable elements of doctrine of change of circumstances in China.The fourth chapter is the legislation and analysis of the doctrine of change of circumstances in the Contract of Civil Code.The first three chapters are mainly based on the doctrine of change of circumstances in Interpretation of Contract Law(2)as the support to discuss and reveal its related issues.This chapter is mainly based on thedoctrine in the Contract of Civil Code(Draft),combined with the related issues revealed by the doctrine in the previous article,making suggestions for the doctrine of change of circumstances in the formal Contract of Civil Code.In the definition of the doctrine and the definition of irresistible force and commercial risks,the provisions of the Contract of Civil Code must be prudent;In the legal effects of the doctrine of change of circumstances,the Contract of Civil Code(Draft)add to obligation to renegotiate.Although the renegotiation obligation was introduced as a pre-procedure for alternation of contract and termination of contract,the legal nature of the obligation and the legal consequences of violating the obligation were not clearly specified,and the application procedures of the three major legal effects required clear pathways to resolution.In conclusion,this chapter proposes specific provisions of the doctrine of change of circumstances of the formal Contract of Civil Code.