Discussion On The Obligation Of Renegotiation In The System Of Change Of Circumstances

Article 533 of Chinese Civil Code codifies the system of change of circumstances and adds the contracting parties' obligation to renegotiate before the court of appeal intervening in its legal effect,which is an advanced legislative achievement in line with international trends.Scholars also speak highly of its values from various basement,such as to protect the weak contracting party,to encourage transaction,to reduce litigation cost,and to eliminate obstacles of contract performance in time.This paper holds that the introduction of the obligation of renegotiation in the system of change of circumstances embodies the legislators' choice of values between restricting the parties' autonomy of will in the choice of the legal procedures and respecting their autonomy of will in the contents of the contracts,which should be favored.However,as for the design of this rule,there are not enough specific provisions on this obligation's meaning,nature,content,application or effect in current article.But the above issues are so closely related to the position of the renegotiation obligation in the system of change of circumstances,which then will affect the overall legal effect structure of the system,that it is necessary to clarify it at the level of interpretation.In order to make the parties' renegotiation play effective role in promoting their own agreement to solve the obstacles during contract performance,this paper will explore how to introduce contracting parties' renegotiation as a legal obligation in the legal effect of the system of change of circumstances.In terms of research methods,this paper adopts the methods of historical research,comparative research and case study.Firstly,it examines the origin and practice of the agreed renegotiation obligations in the renegotiation clauses of international commercial contracts.On this basis,it traces the theoretical construction and academic development of the general renegotiation obligations.Secondly,in the comparative law research,it selects both legal texts and case law which combined renegotiation obligations and judicial remedies as the effect of change of circumstances.Finally,after summarizing the theory of general obligation of renegotiation and referring to the useful experience of the practice of comparative law,this paper attempts to explore the proper position of the obligation of renegotiation in the legal effect of change of circumstances,which based on the civil law system of our country.In terms of content structure,considering that the system of change of circumstances and the obligation of renegotiation originally belong to different systems in different fields,and the crossing problem that the two systems need to solve is the research object of this paper.Therefore,in the way of writing,the two clues of "one obvious and one hidden" are used to integrate the whole paper.In between them,the obvious clue vertically unfolds in turn as the historical origin,practical basis,theoretical development,legislations' comparison of the obligation of renegotiation,and the enlightenment to China's legislation.And the hidden clue develops from the practice of legislations of the effect of the rule of change of circumstances,then its theoretical construction,which followed by the clarification of the position of renegotiation in the system of change of circumstances.Finally,this paper provides an interpretation of the whole legal effect of the system of change of circumstances stipulated in Article 533 of the Civil Code which involving two opinions.First,the contracting parties' renegotiation obligation should be characterized as bilateral obligations,behavior obligations and framework obligations basing on the principle of good faith;and the renegotiation obligation itself does not produce the right to suspend the performance of contract;the sanctions for its breach are mainly on the adverse consequences in litigation,which supplemented by the damages.And the second,the parties' obligation to renegotiate their contract is the first legal effect of the system of change of circumstances,which is supervised and complemented by the judicial remedies as the subsequent legal effect.