On The System Of Re-negotiation Under The Change Of Circumstances

Article 533 of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code")adds the content of "renegotiation" in respect of the legal effect of change of circumstances,which is believed to be the result of more discussions on "obligation of renegotiation" to clarify culture.However,this provision is only a framework provision,and the nature of "renegotiation" is not specified,and there are doubts as to whether it is equivalent to "obligation of renegotiation" by scholars,how to apply this system specifically,and what relationship it has with other legal effects of change of circumstances has not been answered by law.Besides the introduction and conclusion,this paper is divided into three chapters:The first chapter is an overview of renegotiation.Horne is the first one who put forward the renegotiation,this theory was developed and perfected by Neller as "Renegotiation Obligation Theory".Later,it had a profound influence on the legal effect of the application of the change of circumstances,which was absorbed by international commercial rules such as PICC and PECL.Our country’s scholars gradually come to believe that the existence of "renegotiation" shall also be recognized in the Civil Law.Moreover,in the relevant judicial practice,some judges have recognized it.Recently Article 533 of the Civil Code provides for the content of "renegotiation".Starting from the theoretical basis,the author holds that good faith,the principle of autonomy of private law,law economics and fairness can all prove the rationality of the renegotiation system.In addition,it proves the function and value from such aspects as reducing litigation disputes,easing the tension between change of circumstances and strict observance of contract,filling up the loopholes in contract,and from the perspective of distribution and procedural guarantee for contract risks.Finally,it proves that Paragraph 1 provides for the necessity of "renegotiation" by analyzing the defects of change of contract in litigation under the mode dominated by judges and the confusion in the application of renegotiation system in judicial practice.The second chapter mainly focuses on the positioning of renegotiation.Starting from the different ideas of the academic on it,the academic circle mainly has three perspectives on the positioning of renegotiation system,namely,the doctrine of duty,the doctrine of right,and the doctrine of advocating law.Under the doctrine of obligation,there are sub-obligation,non-real obligation and collateral obligation.The theory of obligation is compulsory,and in the legal consequence,the liability for damages from the theory of obligation of payment is overburdened,the malice of the parties is hard to be identified,the damage is hard to be ascertained,and it is not advisable.The collateral obligation seems to be a compromise,but the refusal of negotiation is not necessarily related to the inherent interests and is not appropriate.Under the doctrine of right,renegotiation is regarded as a right of formation.This view is inconsistent with the general legal concept of formation right.The doctrine of renegotiation as a legal advocacy seems to protect the freedom of the parties,but does not impose any constraints on the parties,the renegotiation will not be able to achieve the goal of dispute resolution.Therefore,the author thinks that renegotiation system is a procedural obligation,which should be defined as an unreal obligation.The objective of promoting the parties to solve the dispute through negotiation is achieved through procedural binding,meanwhile,there is no real obligation,the liability is relatively light,and the adverse consequence after violation is combined with judicial discretion.As a part of the measurement of judicial decision,the parties can also be forced to negotiate,so as to realize the minimum procedural restriction on the parties and realize the maximum freedom in determining contract content.After the above analysis,the last chapter studies the application rules of renegotiation.The author first studies the procedures for the application of renegotiation system in PECL,PICC,CRFL and the latest legislative achievement the French Civil Code,summarizes the commonalities thereof,and finally concludes that renegotiation system should be the first effect,and there is a complementary relationship with the intervention of the court.On the one hand,when negotiation fails,judicial intervention will deter the parties to some extent,forcing the parties to try to restore the equilibrium relationship of the contract through renegotiation;on the other hand,even if negotiation fails,preliminary negotiation is not worthless,which can provide reference materials for subsequent judicial discretion.In the specific effect,the adverse party has the right to suspend performance and assign the breaches of the bargaining obligation,in order to determine in what circumstances the adverse consequences shall be borne.