On The Application Of Circumstance Change Rule

In the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code),the change of circumstances applicable in Article 26(hereinafter referred to as Article 26 of the Interpretation of Contract Law(Ⅱ))is changed to Article 533,which essentially eliminates the procedure of reporting and reviewing the circumstances of the change of circumstances.This means an increase in the level of effectiveness of the change of circumstances rule law--making the application of the change of circumstances rule available to local courts at all levels,thus improving the efficiency of the trial.Original contract law explanation(2)of article 26,will be strictly distinguish between changed circumstances and force majeure,but because the two function overlapping,force majeure factors can cause the occurrence of the rules of the changed circumstances in essence and the rules of the changed circumstances encroached on "the contract purpose can’t realize" areas,makes in the long-term judicial practice,there have been applied in chaotic situation.Now to the force majeure as one cause of the fact that elements of the changed circumstances,and delete the contract purpose can’t realize "ruled out the rules of the changed circumstances relief of performance cannot,so to expand the scope of applicable rules of the changed circumstances,to clarify the terms of the application of the rules of the changed circumstances,at the same time also is able to correctly apply safeguard the rule of the changed circumstances.Force majeure will apply the right of rescission under the two rules,the application of which is bound to have problems.In practice,when applying the change of circumstances rule,judges do not demonstrate and explain the difference between change of circumstances and commercial risk or obvious unfairness,which makes the complicated and diverse standards in theoretical research not practical for the judiciary.Therefore,in order to limit judicial discretion,judges should be required to demonstrate and explain the difference standards when applying."Re-negotiation" stipulates that under the change of circumstances rule,it not only actively promotes the transaction,maintains the binding force of the contract,but also guarantees the autonomy of the parties,which is a system design worthy of recognition.But in the concrete applicable,because the related content and nature of indecisiveness and controversial,and influenced by "consultation",the essence of the contract change meaning is absorbed by "consultation",so the consequences of breach of obligation to negotiate only limits the right of contract variation,the parties and the rules of the changed circumstances of termination of the contract shall be deemed to be the judiciary of the final relief way,in this way,The order of application of legal effect of case change rule is also clear because of the establishment of renegotiation obligation.This paper attempts to explore the latest research changes of the changing rules of circumstances,and combined with the relevant judicial practice cases,to find the existing problems in application,reasonable demonstration and analysis of its relevant content,in order to achieve the purpose of reexamining the changing rules of circumstances.