On The Application Of Circumstance Change Rules

Our country did not specify the change of circumstances rule in the "Contract Law of the People's Republic of China".Until May 13,2009,our country initially stipulated the change of circumstances rule in Article 26 of the "Interpretation on Several Issues Concerning the Application of the Contract Law of the People's Republic of China(II)" issued and implemented by the Supreme Court,which appeared in the form of judicial interpretation.Only then did the change of circumstances rule really have provisions.However,this provision is too general and has many imperfections,such as vague application of the rules of change of circumstances and similar systems such as force majeure and commercial risks,imperfect application procedures,serious abuse of power by judges and other issues.In addition,the application of the rules of change of circumstances in China's judicial practice is more complicated,which together lead to a series of application problems in the judicial practice.The "General Provisions of Civil Law" was promulgated and implemented in October2017,so the change of circumstances rule can only be confirmed in the contract compilation.Since August 2017,the Law Working Committee of the National People's Congress has completed four drafts of the civil code contract,namely "indoor draft","draft for comments","draft for first review" and "draft for second review".The provisions of the draft are much more than those of the contract law,and the content has made great progress,but there is still room for improvement.In particular,the situation of the change of circumstances rule is also slightly awkward,not only the content is not perfect,but also the status in the legislative system is very unclear,resulting in the application problems in judicial practice emerge in endlessly,and this kind of problem is becoming more and more obvious.Although Article 533 of the Civil Code of the People's Republic of China(Draft)(December 16,2019)re-stipulates the change of circumstances rule and adds a new renegotiation mechanism,it has not been formally legislated and there are still many problems.What are the characteristics and problems of the rebus sic stantibus rule in judicial practice,and how to perfect the rebus sic stantibus rule in the future civil code contract compilation,which is also the purpose of thisarticle.This paper consists of five parts.The first part is the introduction.In this part,the research background,significance,current research situation at home and abroad and the research point of method and innovation are mainly discussed.This article is mainly based on comparative analysis,literature analysis and case analysis.The detailed innovations include explaining the problems and application in judicial practice through a large number of cases in judicial practice,and putting forward the following views on the construction of the rebus sic stantibus rules in China's future civil code: first,perfecting legislation,refining the provisions of Article 533 of the draft civil code contract,and scientifically defining the scope of application of the rebus sic stantibus rules;Second,solve a series of problems existing in the current judicial practice of this rule,and perfect the judicial application of this rule.The second part is about the general problems of rebus sic stantibus rules.This part includes three main contents.One is about the definition of rebus sic stantibus rules,which mainly expounds the concept and characteristics of rebus sic stantibus rules.The other is to elaborate the applicable conditions and legal effect of the rule.Finally,the differences between the rule and several concepts are elaborated,including the differences between the rule and force majeure,commercial risks,obviously unfair and exemption clauses in application,which is of great significance to the correct application of the change of circumstances rule.The third part discusses some problems existing in the legislation and judicial practice of this rule.This book has sorted out a large number of cases applying the change of circumstances rule,and has classified them in detail.On the basis of a large number of cases,this paper analyzes the application characteristics and problems of rebus sic stantibus rules in legislation and judicial practice,and according to these characteristics and problems,puts forward corresponding improvement suggestions for the application of rebus sic stantibus rules in future civil code and judicial practice.The fourth part is the comparison and reference of foreign rebus sic stantibus rules.This part mainly expounds the theory of rebus sic stantibus rules studied in foreign countries,and then compares it with foreign regulations from the perspectives of its applicable conditionsand legal consequences.By comparing our country's change of circumstances rule with Germany's basic transaction theory and the failure of contract theory in Anglo-American law,we can learn from some theories and systems that can be used in our country.The fifth part mainly puts forward some applicable countermeasures of the rule at the legislative and judicial levels.I hope that through the discussion of the five parts of this article,I can make a little contribution to the application of situational change rules in the future civil code contract compilation.