Research On The Principle Of The Relationship Between Force Majeure And Change Of Circumstances And The Rules Of Judicial Application

The promulgation of Article 533 of the Civil Code establishes a parallel pattern of force majeure and changes in circumstances,but it also raises new questions about how to reconcile the two.Due to the objective complexity of the relationship between the two,force majeure may form a change of situation through a chain reaction,there is a crosscompound between the marginal situation of force majeure and the change of situation,the expansion of the means of correction of the change of situation and the formation of a certain institutional integration of force majeure,this correlation and interlacing increase the distinction and difficulty of application between the two,so it is necessary to have a more reasonable grasp of the relationship principle and judicial application of the two.In the current legislative model,there are three normative models of "unification","dualization" and "compatible application",which are based on the cross-compound of force majeure and change of situation,and the compatible application model is more compatible with China’s judicial practice.Inclusionism,causality,and either-or mutual exclusion are not sufficient to reveal the complex relationship between a change of circumstances and force majeure.The tone of "cross-mixing" determines that the two show more "indistinguishability of forms" and "overlap of result barriers".The statutory and contractual division of the force majeure rule,resulting in its intersection with the change of circumstances system,must also be carried out in two cases.When the statutory force majeure rule intersects with the change of circumstances,the contract rescission may be treated as a special law,and the settlement mode of forming the right of action shall be applied in priority;the force majeure exemption rule shall be grafted into the change of circumstances system to establish the liability of the parties for breach of contract;and the combination of the force majeure loss assumption rules shall be combined to exempt the damages of the reliance interests of the application of the change of circumstances system in cross-cutting occasions.When the agreed force majeure clause intersects with the change of circumstances,it should be made clear that neither the expansionary force majeure clause nor the exclusionary or limited force majeure clause shall exclude the space for the application of the change of circumstances rule.Innovations in the principle of change of circumstances raise questions of retroactivity.Pending the entry into force of the Code,the interpretation theory analogy may be used to apply the change of circumstances or the principle of equity may be used to fill in the situation.After the Code enters into force,the principle of retroactivity may be applied on the basis of favorable retroactivity,blank retroactivity and cross-legal period.In addition,for the judicial application path in the mixed state,the traditional "one-sizefits-all theory" and "oneness theory" have the disadvantages of either-or and excessive mixing,and the "distinguishing normative model under pure and intersecting forms" can overcome its extreme defects.Among them,the application of the system association with result orientation as the core under the intersection of forms,the application of the correlation between "force majeure events leading to defectful performance" under the intersection of results is based on force majeure and supplemented by changes in the situation,"force majeure leads to difficulties in performance" and "changes in circumstances lead to contracts that cannot be performed or meaningless" and "changes in circumstances lead to contracts that cannot be performed or are meaningless" are the top priorities of the typed scheme.