Review Of The Application Of The Rule Of Changed Circumstance In Judicial Practice

The rule of changed circumstance aimed at realizing contract justice has been excluded from the civil law system of our country because its connotation is abstract.Legislators fear that it will interfere too much with autonomy of will and destroy the contract order.Although the judicial interpretation of Contract Law contains relevant content on the rule of changed circumstance,there is no such provision in the Contract Law of our country.So in the strict sense,Civil Code of the People’s Republic of China Article 533 formally established the rule of changed circumstance,and the good application of this rule has become more important and urgent.In order to improve the "going to practice" of the rule of changed circumstance,one must first "come from practice".This article takes judicative papers published by Chinese courts on the Internet as the research object,and analyzes them from both macro and micro levels.At the macro level,the basic application of the rule of changed circumstance under different legislative states is studied in three periods,including information such as the amount of adjudication,the approval rate of adjudication,the cause of the case involved,the reasons for the change of situation,and the basis for adjudication.At the same time,COVID-19 has led to a surge in the number of civil disputes,including a large number of situation changes.Because such cases span two periods and have special content,the application of the rule of changed circumstance in this cases is studied separately.Through the research at the macro level,this paper finds that the overall number of judgments is on the rise.The cases involved almost cover all typical contracts in the Civil Code.And the reasons for changing circumstance are increasingly diverse,which can be roughly divided into three categories: market reasons,government behavior reasons,and self-related reasons.Among them,there are obvious problems in the application of the rule of changed circumstance,which is manifested in the following: the wrong function positioning,the confusion of application and the subjective trial.At the micro level,the above three major issues are shown as follows.Some courts took the rule of changed circumstance as an exemption from liability for breach of contract.And the application of this rule has been broadened.Second,the rule of changed circumstance is confused with the rule of force major and the rule for termination of the contract by the defaulting party.Third,the determination of the applicable conditions and risk allocation is subjective.On the one hand,some judges lack professional competence and have a wrong understanding of the law,leading to the above problems.On the other hand,the wrong understanding of the function and imprecise legislation are also important reasons.Some scholars believe that the rule of changed circumstance is similar to the rule of force major.So since the breach of contract cannot be attributed to the parties,the parties are exempted from the liability for breach of contract.This view does not correctly understand the legal theoretical structure of the rule of force major.And it ignores that the essence of the rule of changed circumstance is the system of risk allocation.The rule of changed circumstance is based on the principle of fairness,which does not mean that the rule is the principle of fairness.The positioning of this rule is always an exception to the principle.In the legislation,the expression of the rule for termination of a contract by force major hides the key message that the contract cannot be performed.And this leads to confusion between the rule of changed circumstance and the rule of force major.The rule for termination of the contract by the defaulting party added to the civil code has similar expression with the rule of changed circumstance.In particular,"legally or practically impossible to perform" and "excessive performance cost" are similar to the type of changed circumstance rule adjustment.Based on various judgment issues and cause analysis,this paper puts forward some suggestions for the optimization of this rule in the era of Civil Code.First,specify the applicable conditions and legal consequences of the rule.Lawmakers should mainly clarify that renegotiation is the obligation of the parties and "continued performance fails to achieve the purpose of the contract" is still the type of adjustment of this rule.And if the debtor fails to perform his contractual obligations due to a change of circumstances,he shall still be liable for breach of contract,provided that the scope of damages shall be limited to trust interests.On the other hand,based on the obstacles to the performance of the contract,the systematic application of the three rules should be constructed.On the level of procedural law,the review procedure for the application of the rule of changed circumstance can be added and the evidence evaluation can be clarified.