On The Duty Of Re-negotiation

During the performance of the contract, when the performance of obligation becomes impedimental, both of the parties will not always terminate their contract, instead, they will always negotiate with each other in order to adjust and keep the contract through the contract terms. In the contract practice, the autogeneous regulations which make contract more soft are being created and used in the form of adjustment terms.What is more, even if there was no impedimental problem in the performance of obligation, however, because the object of payment is incomplete and indefinite, the parties need to negotiate with each other in order to decide the object of the payment in their contract when it is necessary.No matter in the problem of adjustment of a contract or definition of the object of a payment in the contract, contract parties must and should negotiate with each other. So, theoretically there is a duty between the contract parties, which is thought the duty of re-negotiation.The duty of re-negotiation is the duty when one party thinks it is necessary to re-negotiate while the other party thinks it is expectable to re-negotiate, according to their re-negotiation consensus, both parties will burden that duty to negotiate with each other about the adjustment, supplement or modification of their contract.Anyhow, why the legal circles have different opinions on the internal essence of the duty of re-negotiation is because they have different opinions on the relationship between one party's duty of re-negotiation and the other party's duty of commitment. The range of the duty of re-negotiation should be considered under two situations:one is in the incomplete contract, both parties will decide their object of payment through negotiation and the other one is when the performance of obligation becomes impedimental, both parties will adjust their contract through negotiation.The duty of re-negotiation, as a unreal obligation, should delaminate the opposite party's duty of commitment during the course of their negotiation. So, the party who breach the duty of re-negotiation should burden legal process disbenefit, which means his right to adjust or terminate the contract will be restricted or deprived. The elements of the duty of re-negotiation consist of concrete elements and movable elements. And the concrete elements consist of party's right to adjust the contract and the object of the adjustment can be adjusted.The movable elements consist of one party's necessity of re-negotiation and the other party's possibility of expecting their re-negotiation.The No.40 judicial document issued by the People's Supreme Court in the year of 2009 confirmed the existence of the duty of re-negotiation in Chinese law, however, in that judicial document there was no details about the content or elements of the duty of re-negotiation. What is more, the duty of re-negotiation in Chinese Law is always discussed in the framework of the principle of change of circumstances. After discussing the duty of re-negotiation in Chinese Law, the problem which Chinese legal circle always research the duty of re-negotiation in the framework of the principle of change of circumstances will be pointed out.