Research On The Applicability Of The Renegotiation System Under Circumstances Of Change Of Circumstance

The implement of the civil code is a significant moment in historical perpetual flow of Chinese rule of law,in article 533 of the rule of change of circumstances,the renegotiation system is written into the law for the first time to encourage the parties to solve the deadlock in contract performance through negotiation.At the same time,renegotiation is also set as the legal pre procedure under the condition of alteration of circumstances.The determination of the renegotiation system is the trend of legislation at home and abroad.The absorption of this provision in China’s civil code will play a positive role in the specific application of the principle of change of circumstances.It will also correct the deficiencies in the demonstration of judicial interpretation and court guidance cases and better solve contract disputes,even covid-19 is extended to other fields,and it will be very clear in solving practical problems.For example,the contract caused by the new crown epidemic can not perform disputes.The codification of the re negotiation system and the addition of the pre litigation consultation system of the parties embody the principles of good faith and fairness in the field of civil law.It helps to limit the discretion of judges and reduce the probability of failure to perform the contract.Secondly,the introduction of renegotiation system into the rule of change of circumstances has caused the conflict between the principle of contractual autonomy and procedural justice,but the renegotiation system has been properly integrated in the value choice of the two,and the legislative technology and legislative purpose are worthy of recognition.However,there are still some disputes on how to interpret and apply the renegotiation system.For example,whether the legal nature of the renegotiation system is explained by the traditional theory of rights and obligations,or the alternative theory of pre procedure is more reasonable;then negotiate whether the parties can suspend the performance;how to define and divide the liability for damages.How to renegotiate between the parties has not been responded by judicial interpretation;but if the above problems are not solved,it is bound to affect the specific structure and application of the renegotiation system in the legal effect of change of circumstances.Therefore,it is necessary to further improve the interpretation of the specific applicable rules of renegotiation.Although the introduction of the renegotiation system in the civil code is worthy of recognition,there are obstacles in the application and implementation of the simple legal provisions in judicial practice.This paper tries to explain the renegotiation system,solve the difficulties existing in the application of the renegotiation system,give full play to the maximum effect of the renegotiation system,and provide a specific interpretation path for the application of the renegotiation system in our country.This paper is problem-oriented,adopts a step-by-step method to explore the application of the renegotiation system,and adopts the research methods of historical research method,comparative research method,case research method,semantic analysis method and so on.The first chapter mainly analyzes the legislative and judicial situation of China’s renegotiation system,discusses the existing problems,then puts forward the interpretation path for the problems,and improves the specific application system of renegotiation,that is,from raising problems to solving problems.The second chapter discusses the legal nature of the legislation of the renegotiation system.Firstly,it evaluates the theory of power and the theory of obligation,and comes to the conclusion that two models are not essential difference,and puts forward to adopt the theory of pre procedure for qualitative analysis,and then makes a jurisprudential exploration of the theory of pre procedure,and comes to the conclusion that the renegotiation has its legitimacy before the litigation procedure.At the same time,based on the qualitative of the theory of procedure pre negotiation,further improve the specific content of the interpretation of the re negotiation system,including the definition of the time node of re negotiation,the definition of the period of renegotiation and the distribution of the burden of proof for the performance of renegotiation,so as to ensure the status and role of the pre negotiation procedure.The third chapter discusses whether the parties can suspend performance in the process of re negotiation,first demonstrates its legitimacy,then distinguishes the types of contracts applicable to the suspension of performance,and points out that the suspension of performance is only applicable to general civil and commercial contracts,not civil contracts involving major public interests.On this basis,it defines the specific application of suspension of performance,so as to reduce the risk of suspension of performance,including clarifying the start and end time of renegotiation suspension of performance,regulating the risk of suspension of performance from the perspective of security law and the obligation of timely notification of suspension of performance.The fourth chapter discusses the division of liability for renegotiation damages.The pre renegotiation procedure essentially recognizes the obligation of renegotiation,and it is worth exploring what kind of obligation the pre renegotiation procedure belongs to.Therefore,this chapter first discriminates the mainstream theory,considers that the pre renegotiation procedure belongs to the collateral obligation,and then defines the time span of renegotiation damages.It is pointed out that damage compensation only exists after the beginning of renegotiation,and then finally put forward corresponding suggestions on the application of renegotiation damage compensation,including the reference of contracting fault to renegotiation damage compensation,clarifying the influencing factors of damage compensation in the process of renegotiation and the definition of the influencing factors of damage compensation scope,so as to make damage compensation reasonable and systematic.