On The "re-negotiation Obligation" Under The Change Of Circumstances

The obligation of renegotiation was proposed by the German scholar Nobert Horn in 1981 and defined as: the obligation of the two parties of the existing contract to adjust the contract to the changes of the circumstances according to their consent,and for this purpose,they should negotiate with each other.In the study of our country,the obligation of renegotiation is not as important as the change of circumstances.Most scholars mention it in passing when they study the change of circumstances.With the promulgation of the Civil Code in 2020,Article 533 explicitly stipulates the obligation of renegotiation.Since then,China has confirmed the existence of the obligation of renegotiation in terms of actual law.In bargaining obligations have not been set before the law,theory and judicial practice to negotiate again compulsory research to a certain extent,but the author thinks that the traditional theory of "bargaining obligations" compulsory Angle positioning,too much freedom,the restrictions of the parties in the behavior of freedom and authority to measure in favour of the functions and powers doctrine,ignoring the fundamental purpose of the existence of bargaining system again,That is to create a space for free negotiation between the parties,which seriously hinders the re-negotiation system from exerting its due effect in social life.This paper redefines the right of re-negotiation and endures it with the effectiveness of the right of formation.On the one hand,it gives the parties the space of free choice and promotes their autonomy of will.On the other hand,it can also improve the efficiency of re-negotiation and promote the system of re-negotiation to play its role.This paper is divided into four chapters,the structure and content are as follows:The first chapter,starting from the general concept of renegotiation obligation,analyzes the current situation of theoretical research,legislation and judicial practice of renegotiation obligation,and leads to the reasons why renegotiation obligation cannot play its role.The second chapter,analyze the obligation in the traditional sense and bargaining,the traditional perspective of bargaining again obligations shall be the legal nature of qualitative,from traditional to negotiate the obligation of judicatory practice,and from the principle of autonomy of private law obligation is to reflect private law autonomy,decided to bargaining for the third chapter analyzed.The third chapter gives a new position to the "renegotiation obligation" from the perspective of rights,explaining and demonstrating that the "renegotiation obligation" stipulated in Article 533 of the Civil Code should be the right of the contract parties adversely affected by the change of circumstances.On the one hand,it demonstrates why it should be a right,and on the other hand,it specifically demonstrates the property of the right,that is,it should belong to the right of formation.It also analyzes when the right exists and the effect of exercising it.The fourth chapter,this chapter is mainly the third chapter,on the basis of analysis of the right Angle,the legal nature of "bargaining obligations" under the general problems,such as content,and violation of the obligation of the relief measures,with reference to the contracting fault liability demonstrated the property,the damage compensation of damages set concrete combined with China’s national conditions make a workable system.