| Article 533 of the Civil Code has been modified and improved based on the "Judicial Interpretation II of the Contract Law" regarding the change of circumstances,deleting the two limiting conditions of "non-force majeure" and "inability to achieve the purpose of the contract".At the same time,an internationally applicable renegotiation procedure has been introduced,adding to the connotation of the change of circumstances system,which has significant positive implications.This also means that the change of circumstances system has now been formally incorporated into the Civil Code,ending the predicament of being regulated solely by judicial interpretations in the past.However,many of the detailed provisions of the change of circumstances system in the Civil Code are still unclear,and the related concepts are fuzzy,causing ongoing academic debates on these issues.In early 2020,the outbreak of the epidemic led to many factories and shops closing,employees being quarantined,and society being "locked down".As a result,many contracts faced difficulties in performance.When applying the change of circumstances to solve these problems,we were able to examine the loopholes and theoretical research deficiencies in the change of circumstances system and the many difficulties in its application during the epidemic.Through extensive literature research and case analysis of the application of change of circumstances during the epidemic,this article has gained some understanding of the above issues and controversies.Firstly,the change of circumstances is not a principle but a system,with five constitutive elements,including objective,time,subjective,reason,and result.After the implementation of the Civil Code,"inability to achieve the purpose of the contract" is no longer a constitutive element of the change of circumstances.Secondly,the change of circumstances and force majeure are not mutually exclusive but rather compete with each other.Under the background of the epidemic,the two should be applied in a coordinated manner,without the need to determine the nature of the epidemic and the epidemic prevention measures but based on their impact on contract performance to judge whether to apply the change of circumstances system or the force majeure system.If the contract cannot be performed,and the purpose of the contract cannot be achieved,the force majeure system should be applied.If the performance of the contract is difficult but still possible,the change of circumstances system should be applied.The judicial application of the change of circumstances and commercial risks can be distinguished from the perspectives of "predictability" and "bearability." Unforeseeable and unbearable risks should be dealt with using the change of circumstances system.Finally,renegotiation should be recognized as an obligation,but not a genuine obligation.The obligation to renegotiate should be regarded as a pre-procedure for changing or terminating a contract.However,if a party violates the obligation to renegotiate,the party will not be liable for damages,but may lose or reduce certain rights.In changing or terminating a contract,the parties’ autonomy should be fully respected,and termination of the contract should be strictly limited,while efforts should be made to continue the performance of the contract by changing it. |
