An Empirical Study On The Judicial Application Of The Principle Of Change Of Circumstance

Change of situation is the exception to the principle of strict contract adherence,and it has an extremely important position in the field of contract law.However,the lack of legislation of the situation change rules in China and the lack of specific operational norms have greatly affected the accurate application of the rules in judicial practice,and there have been many controversial cases in judicial practice.The Civil Code has made certain amendments to the change of situation,such as deleting "force majeure" from the definition and adding the addition of renegotiate obligations.In this article,after the implementation of the civil code of the situation change related judicial case statistical analysis,found that the civil code under the background of situation change system of judicial application mainly exist three aspects: situation change and commercial risk is difficult to distinguish,to negotiate the nature of the behavior is not clear,the relationship with force majeure principle is unknown.Under the circumstances limited to the stable operation of the parties and do not involve the economic activities of the nature of shooting,a relatively accurate distinction between changes in situation and force majeure can be made.Change and commercial risk to distinguish the criteria in the final analysis is whether in line with the fairness and justice,and "obviously unfair" can be used as a "predictability" judgment index,so can change the situation and commercial risk of the two difficult elements "obviously unfair" and "predictability" unified down to "obviously unfair".In view of the current problem that the judgment standard of "obviously unfair" is too vague,it is necessary to form "obviously unfair" into a data index,and profit is the purpose of the parties to participate in economic activities,so "obviously unfair" can be measured from the value of profit.Combined with economics in the short-term income and variable cost,long-term income and the total cost of decision model analysis,judge what numerical indicators under the parties terminate the contract loss less than continue to deal to maintain the loss,let it continue to perform the party is "obviously unfair",to solve the difference between situation change and commercial risk.When applying the distinction between situation change and force majeure,we should respect the reality and admit that there can be both clear demarcation and situations that are difficult for the two to clarify,so as to conclude that the relationship between the two should be "moderate cross-mixing".Further,when the two cross and mix,based on the legislative mode of the two compatible,the two system functions are borrowed to realize the cohesive and complementary functions.In the study of the nature of the renegotiation behavior,the "right" or "obligation" of the re-negotiation system is similar to the "visible hand",but the current system is not clearly stipulated in the application method and the legal consequences,which makes it difficult to truly implement the legal will.On the macro level,the system that does not stipulate the legal consequences is different from not stipulating the system.The "advocated" renegotiation system respects the law of the market and can give full play to the role of the "invisible hand",which is obviously more reasonable than the renegotiation system of rights and obligations.