Study On The Application Of The Principle Of Situation Change In The Contract Of Commercial Housing Pre-sale

The principle of change of circumstances refers to that after the establishment of the contract,the basic conditions for the conclusion of the contract have undergone significant changes which are unforeseen by the parties at the time of the conclusion of the contract and do not belong to commercial risks.If it is obviously unfair for one party to continue to perform the contract,the party adversely affected may request to renegotiate with the other party;if the negotiation fails within a reasonable period of time,the party may request the people's court or arbitration institution to apply for modification or termination of the contract.The people's court or arbitration institution shall,in light of the actual situation of the case,decide to modify or terminate the contract in accordance with the principle of fairness.It can be seen from the viewpoints of many schools on the principle of situation change that after 2000,with the great changes in the world's economic model and the continuous diversification of the types and patterns of contracts,this principle has gradually been recognized and supported by most countries in law.The principle of change of circumstances originates from the system of contract frustration in equity countries.After the contract is signed,the change of objective facts makes the performance of the contract impossible,unrealistic,or lose the original intention of performance.In the common French family,there is another rule corresponding to it,that is,transaction basis.The basic requirement of this rule is: if the basic conditions of the performance of the contract have problems,the contract subject suffering from adverse factors in the performance of the burden behavior can request to change or terminate the contract,so as to protect his own rights and interests.There are many academic views on the formation of the principle of situation change in China,and there are many disputes among scholars.However,it was finally confirmed in the interpretation of the contract law of our country and stipulated in article 323 of the draft contract of the civil code(general provisions of the second review draft).It should be said that the principle of situation change is of great significance to the compilation of civil code.China's commercial housing pre-sale contract first appeared in Hong Kong in the1990 s,and now this kind of pre-sale contract gradually evolved into the main form of civil subjects to buy houses.With the continuous improvement of the economic level,there are many commercial housing pre-sale contracts in the process of performance,there are objective changes that can not be attributed to the two parties,resulting in unfair to the other side of the contract.Once the contract cannot be changed,it will cause significantdamage to the legitimate rights and interests of one party or even both parties.Therefore,it is of great significance to study how to apply the principle of situation change in the pre-sale contract of commercial housing.By analyzing the theoretical basis of the pre-sale contract of commercial housing and the principle of situation change,combining with cases to understand the problem of applying the principle of situation change in the dispute of the pre-sale contract of commercial housing,find out the relevant solutions,and express reasonable opinions on this basis,which is the important reason and significance of this study.In addition to the preface and conclusion,the article is mainly divided into four parts.The first part is to introduce the general situation of the pre-sale contract of Commercial Housing,which leads to the case about the dispute of the pre-sale contract of commercial housing,summarizes the focus of the dispute of the case,and puts forward whether the principle of change of circumstances can be applied in the case,the second part is a brief analysis of the basic theory of the principle of Rebus Sic Stantibus,and discusses various theories about the principle of rebus SIC stantibus,and analyzes the difference between the principle of change of circumstances and other confusing systems,as well as the elements of the principle of change of circumstances;the third part is aimed at the application of the principle of change of circumstances in case analysis described in the first part,the fourth part is the consideration of the application of the principle of change of circumstances to the pre-sale contract of commercial housing,this paper analyzes the main ways of the application of the principle of change of circumstances in the dispute of the pre-sale contract of commercial housing,the definition of the obligation of renegotiation of the contract,and the application of the rescission and change This paper analyzes the application procedures and entities of the principle of change of circumstances in the disputes of the pre-sale contract of commercial housing,and puts forward some suggestions on the application of the principle of change of circumstances in the disputes of the pre-sale contract of commercial housing,the purpose is to make the principle of change of circumstances be correctly and reasonably applied in the case of disputes over the pre-sale contract of commercial housing,and to provide some opinions and suggestions for judicial practice.