Study On The Application Of The Rule Of Changed Circumstances

As the exception of strict adherence to the contract,the development of the rule of change of circumstances in China has experienced a process of "twists and turns".In 2020,the civil code was issued,and the rule of change of circumstances was officially written into Article 533 of the civil code in the form of legal provisions for the first time,which provided a clear legal basis for the handling of relevant cases and played an important role in practice.Now,the civil code has been in force for one year,and a certain number of case samples have been accumulated in the application of the rule of change of circumstances in article533 of the civil code in practice.The observation of these case samples is of certain value for theoretical development,legislative perfection and practical application.By observing the current situation of the application of the rule of change of circumstances in practice,this paper closely combines theory with practice,does not preset conclusions,and truly and objectively shows the current situation of the application of the rule of change of circumstances.On this basis,it carries out research,finds problems and puts forward suggestions for improvement.The introduction of this paper introduces the research background,research status,research ideas,research methods and significance.The research background mainly explains the legislative development process of the rule of change of circumstances in China: it first attracted the attention of scholars,then experienced a tortuous legislative process,and finally officially established in the form of a code in 2020.The research status part explains the research and development process of the rule of change of circumstances in China’s academic circles.By summarizing the research results of scholars,it is found that the existing literature is mostly theoretical research and lack of observation on the application of practice.Therefore,on this basis,this paper puts forward the research ideas,research methods and research significance of this paper.The first chapter is the basic theory of the rule of change of circumstances,including the concept,basic theory,constituent elements and the legal effect of the application of the rule of change of circumstances.Through these four aspects and combined with the latest theoretical results in the academic circles,this paper interprets the rule of change of circumstances.The second chapter is the current situation of the application of the rule of change of circumstances.Through the investigation of the application of the rule in the case of change of circumstances in practice,this paper first summarizes the application of the rule in practice.Secondly,by summarizing the types of contracts to which the rules apply,this paper puts forward three aspects: the applicable subject and the cause of change of circumstances.Finally,through the investigation of the current situation of the application of the rules in practical cases,we can recognize the judiciary’s understanding and action orientation of the rule of change of circumstances,and summarize the impact of article 533 of the civil code on the judicial application of the rule of change of circumstances.The third chapter is the problems existing in the application of the rule of change of circumstances.Based on the above analysis of the current situation of application,it is found that there are some problems in the application,including the judge’s active application of the rule of change of circumstances,the overhead of the new "obligation of renegotiation" in the rule,the lack of provisions on the exercise period of the rule of change of circumstances,the judge has a large discretion on the change or termination,and the loss sharing after the termination of the contract under the rule of change of circumstances is not clear.The fourth chapter investigates the application of the rule of change of circumstances in foreign countries.Firstly,it investigates the application of the rule of change of circumstances in civil law countries,including the application of the rule of change of circumstances in Germany,France and Japan.Secondly,it investigates the application of the rule of change of circumstances in the common law system.Finally,it is the Enlightenment of the application of the rule of change of circumstances in foreign countries to our country,including that the change and rescission are not secondary effects,but should be parallel effects,depending on the choice of the parties,and it should be clear that the breach of the obligation of renegotiation should bear adverse consequences,etc.The fifth chapter is the improvement of the application of the rule of change of circumstances.First of all,the judge can not take the initiative to apply according to his / her functions and powers.He / she should clarify the party doctrine initiated by the rule of change of circumstances,and the non party claims that the court can not take the initiative to apply the rule of change of circumstances.Secondly,to improve the obligation of renegotiation,we should clarify the nature and content of the obligation of renegotiation and the adverse consequences of violating the obligation of renegotiation.Then improve the provisions on the exercise period of the rule of change of circumstances.Before the legislation or judicial interpretation defines the exercise period of the rule,paragraph 2 of article 564 of the civil code should be applied by analogy.Then the discretion of the judge should be limited.In the case of changing the contract,the parties should put forward the change plan at the same time,and the judge should judge the rationality of the plan and then decide whether to adopt it.This change procedure is more reasonable and operable for limiting the discretion of the judge;On the occasion of terminating the contract,the judge should fully reason the consideration of termination and enhance the reasoning of judicial discretion.At the same time,the court should strengthen the supervision of such decisions and conduct regular self-examination.Finally,fair share of the losses arising from the termination of the contract shall be based on the principle of fairness stipulated in the law,follow the framework of putting forward the idea of reasonable share of losses,first divide the losses into two and share them equally to both parties,and then make appropriate adjustments to the boundary of average distribution according to the situation of each case.