On The Principle Of Change Of Circumstances

As one of the important principles for the performance of contract, changed circumstances is accepted by both continental law system countries and Anglo-American law system countries for its emphasis on the substantial justice. There were arguments and disputes on whether or not to include the principle of changed circumstances in the process of making the Contract Law in 1999. Finally,the legislation adopted the view of the opposition faction. The spread of SARS of 2003 in China and the birds and beasts flu in 2004 bring about not only the fear of the diseases but also the reflection on the legal position of the principle of changed circumstances. It proves the necessity of the principle in Chinese practical affairs. Especially in the practice of contract, when we meet with changed circumstances we cannot avoid it, because according to the requirement of law—"judge must give a judgment". By studying this principle, the author intends to give some implications for its establishment in our country. It adopts the approaches of comparative analysis and case study. Besides the 1st part—Introduction and the 5th part--Conclusion, its body is composed of 3 parts.Part Two is the comparative study of the principle. It studies the origin and the development of the principle of changed circumstances in continental law system countries and the theory of frustration of contract in Anglo-American law system countries. In addition, it takes into consideration of the international legislation and introduces the theoretical basis of the principle. It also gives a different viewpoint on the proposal that it is more suitable for our country to adopt "principle of justice" as the upper principle for changed circumstances.Part Three is about the composition of the principle. This part emphasizes the effects of substantial law and procedural law concerning the application of the 6 aspects of the principle. It considers the effect of application of this principle in obligation of renegotiation to be the procedural effect and renegotiation to be parties' obligation but not right. The author suggests a new viewpoint that authority principle should act as a supplement to litigant principle, which is quite different from both "litigant principle" and "authority principle". In addition, it puts forward an unchanged period of 6 months to limit the period of changed circumstances. In this part, the author also gives a comprehensive analysis of its relationship with cannot the resisting force and commercial risk, the difficulty in telling the differences of which is the major cause for the exclusion of it in the Contract Law.Part Four deals with the principle in China. It introduces the historical development of it during the period of Republic of China, in Taiwan district and since the founding of the nation. It further analyzes the causes for its exclusion in the Contract Law, and based on China's actual situation, it suggests a specific "two-steps" approach to consummate the principle of changed circumstances in our country.The author's conclusion is that: we are in the period of reform, after China joins WTO, the world economic integration becomes more obvious, our country has becoming an important component in the global economy and more and more under the great influence of international economic changes. Sticking to the principle of "the contract will have to observe" will surely make it hard to resume when the interests between the litigants are greatly off balance. In addition to this, legislation should meet the needs of the society and be foresighted. We should make some adjustment to follow the changes of the society. As time goes by, theoretical studies in our country will be more comprehensive and perfect, judicial practices will provide us with more experiences, the quality of judge will be improved, the overall judicial environment will be bettered, and we will have a greater communication with other countries worldwide in economical affairs, all these together provide us a good timing and a mature judicial environment for the legislation of this principle. The author believes that in the near future, as one of the basic principles of the Contract Law, the principle of changed circumstances will surely be established and improved in legislation of China.