Study On The Renegotiation System Of Article 533 Of The Civil Code

Article 533 of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code")first established the renegotiation system in our legislation.As an important means to resolve the contract deadlock caused by the change of circumstances,the renegotiation system is the denial of the paternity of law.The decision of the contract is given to the parties who are more clear about their own interests,with full respect for the autonomy of the parties,reasonable allocation of resources,reduce the burden of the court and other advantages.Therefore,it has been widely used in the settlement of international commercial contract disputes.Article6.2.3 of the General Rules of International Commercial Contracts provides that the adversely affected party has the right to request a renegotiation,which shall be made without appropriate delay and shall indicate the reason for the request;If no agreement is reached within a reasonable time,either party may resort to the courts.This article establishes the important position of renegotiation system in dealing with international commercial contract disputes.The introduction of this clause into the Civil Code is based on the judicial practice of China and conforms to the legislative progress of the international legislative trend.Especially under the impact of the novel coronavirus epidemic,there have been a large number of disputes caused by changes of circumstances.The renegotiation system will undoubtedly provide a contract solution more in line with the interests of the parties.The provisions of renegotiation system in Chinese Civil Code are not specific enough,and several core issues of the system are not clear: the legal orientation of renegotiation,the specific content of renegotiation,and the legal consequences of violation of renegotiation.This directly affects the legal application of the system.On the nature of renegotiation,there are three kinds of theory: obligation theory,right to form theory and advocacy procedure theory.The theory of right starts from the interpretation of the article itself and holds that "the party adversely affected may renegotiate with the other party" stipulated in Article 533 is a kind of expression of right.The obligation theory focuses more on the binding force of behavior,and holds that only by defining renegotiation as obligation and enacting corresponding legal consequences can the system value be truly guaranteed.The advocative procedure theory is discussed from the Angle of criticizing the paternity of law and respecting the autonomy of the parties’ will.At present,the main point of view in the academic circle is to define renegotiation as a single obligation,which ignores the complexity of renegotiation obligation.Renegotiation is the necessary legal procedure before the litigant brings a lawsuit to the court,which inevitably contains procedural obligations and is the collection of various substantive obligations.Regarding the specific content of renegotiation system,there are mainly problems such as unclear premise of application,unreasonable subject of application,unspecific negotiation process,not clear whether the parties enjoy the right to suspend the defense,and not defined the role of the judge.If not according to the specific situation to distinguish,all in line with the circumstances of the change of the case must enter the negotiation procedure will undoubtedly greatly reduce the efficiency of the contract,and the system set up against the original intention.The Civil Code limits the subject of application to the "adversely affected party",thus improving the legal status of that party.Whether this provision is reasonable needs to be further demonstrated.However,the negotiation process is not specific,which makes it impossible to evaluate whether the parties have properly fulfilled the obligation.The uncertainty of the judge’s power directly threatens the realization of the purpose of renegotiation.The specific content of renegotiation should also be specified according to the purpose and function of the system to enhance its legal applicability.The nature of renegotiation determines the legal effect of violating the system.On the one hand,in order to ensure the function of the renegotiation system to play,the corresponding legal effect must be stipulated to match it.On the other hand,the setting of legal consequences should follow the principle of moderation and should not interfere too much with the parties’ autonomous intention.The discussion of its legal liability should also be from the violation of substantive obligation and violation of procedural obligation.A breach of substantive obligation is liable in accordance with the rules of derogation,while a breach of procedural obligation leads to a derogation of procedural rights.