On The Application Of The Change Of Circumstances Regime In Construction Contracts

The change of circumstances system stems from the principle of good faith and is an important part of civil law theory.Although the Civil Code of the People’s Republic of China has made certain amendments to the previous rules,the scope of application of the principle of change of circumstances as an exception to the principle of strict observance of contract is still relatively limited,and there are also problems such as strong subjectivity and different adjudication standards in judicial practice.The types of contract disputes in the field of construction projects are complex,and the application of the change of circumstances system has gradually put forward more demand.This paper first summarizes the adjudication of construction contract disputes involving change of circumstances,and points out the problems caused by the uncertainty of the existing regulations.Then,based on the general application conditions and application effects of the change of circumstances system,combined with the characteristics of construction contracts,it is pointed out that it is more difficult to judge the elements such as major changes and obvious unfairness,resulting in the parties being more inclined to continue to perform the contract through renegotiation.Secondly,when applying the change of circumstances system,the impact of different pricing models on the application of the price rise and fall typical change situation is discussed,and it is clear that even in fixed-price contracts,there is still room for applying the system to adjust the price,while contracts with adjustable price mode have less necessity because they have more room for self-adjustment;Thirdly,it is clarified that the material misunderstanding system cannot replace the change of situation system in the case of abnormal natural geographical conditions,and points out that in the future,China can issue relevant judicial interpretations to fill this legal loophole;At the same time,due to the impact on the adjudication path caused by the deletion of failure to achieve the purpose of the contract in Article 533 of the Civil Code,it is necessary to further distinguish between the possibility of application of the change of circumstances system when performance is impossible and performance is difficult;Then,the effect of the exclusionary clause is discussed,and this paper argues that the effect of the exclusionary clause should be distinguished based on the inherent boundary of risk allocation.Finally,from the aspects of the application requirements and legal effects of the change of circumstances system,combined with the characteristics of the construction contract,it is pointed out that some of the application conditions of the change of situation system in the construction project contract can be clarified by issuing normative documents.Specific rules are also constructed for the obligation to renegotiate in the judicial process,so that the court can maximize the function and effectiveness of the obligation to renegotiate in the three stages of pre-litigation,litigation and adjudication.