Force Majeure And Change Of Circumstances Application Study

According to the provisions of the existing laws,force majeure and change of circumstances are two different systems,but there are similarities.In recent years,force majeure and change of circumstances are often mixed by the courts,resulting in increasing disputes in the practical application of force majeure and change of circumstances.There are two types of problems with the application of force majeure and change of circumstances in practice,One is the contradiction between the determination of the nature of the case and the applicable rules,i.e.the court characterised the case as force majeure but applied a change of circumstances as the basis for its decision.The second is to consider cases that are force majeure as a direct change of circumstances.The different perceptions of judges around the world will result in many similar cases,some applying force majeure and others applying change of circumstances,resulting in "different judgments in the same case".This is not conducive to protecting the interests of the parties involved,nor is it in line with the Supreme People’s Court’s vigorous efforts to promote the reform of the judicial system to "judge cases by category".With regard to the controversies that have arisen in judicial practice,it is clear from studying the literature,collating and analysing the legislative provisions and the views of judicial practice decisions that there are two main reasons for the controversies.One is that the law is unclear as to how force majeure is to be defined in relation to a change in circumstances.There are two main divergent views in civil law scholarship,with view one suggesting that force majeure and change of circumstances intersect,with some cases meeting the elements of both force majeure and change of circumstances.The second view is that force majeure is a cause of the occurrence of a change of circumstances and that the two are causal and cannot be compared in the same dimension.The lack of clarity in the relationship between the two is a prerequisite for disputes.The second is that the law does not provide a comprehensive list of the legal consequences that force majeure may cause,thus creating a situation where force majeure causes difficulties in the performance of the contract,with some judges applying the principle of force majeure and equity to solve the problem,and others simply finding the case to be a change of circumstances.Therefore,in order to solve the problem of force majeure and change of circumstances in their application,the relationship between them needs to be further clarified and the legal consequences of force majeure needs to be comprehensively understood.Addressing the application of force majeure and change of circumstances involves both legislative and judicial levels.At the legislative level,the law is more mature and detailed on force majeure,but there are relatively few provisions on change of circumstances,and combing through the legislative development of force majeure and change of circumstances involves the problems of not providing for the relationship between the two and the overly broad content of change of circumstances.At the judicial level,the different ways of recognition and application in judicial practice are sorted out,dealing with the question of how specific legal provisions operate in practice.Based on the study of academic views and judicial decisions,the view is reached that although there is an intersection between force majeure and change of circumstances,they still belong to two different regimes.The intersection of the two includes the intersection of cases and the intersection of solutions when performance is difficult.When a case meets the constituent elements of both force majeure and change of circumstances,the parties may be allowed to choose;when a case is a force majeure,it cannot be characterised as a change of circumstances;when a force majeure case causes difficulties in the performance of a contract the principle of equity should be applied to deal with it.Therefore,the Supreme People’s Court should issue judicial interpretations and official guiding cases to clarify the scope of change of circumstances and the relationship between force majeure and change of circumstances,so as to provide a basis for adjudication in judicial practice.