Research On The Nature And Application Of Renegotiation In Change Of Circumstances

The renegotiated clause is the product of amendments to the traditional judge-led model that is used to resolve changes in the situation,which gradually exposes its drawbacks,and reflects the respect for the autonomy of the parties.After a long period of development,the renegotiation clause was officially recognized by my country’s Civil Code.The establishment this time has theoretical legitimacy and practical necessity.However,However,due to the principle and abstractness of the provisions of the civil code,the legal nature of the renegotiation clause and its application rules are not clear,which makes its application very problematic.There are often cases of different judgments in the same case in practice.In terms of legal nature,renegotiation should be a right rather than an obligation.The positioning of the theory of rights can give full play to the function of renegotiation,and the parties can independently choose whether to renegotiation,which conforms to the principle of autonomy of will.The right to renegotiate should be positioned as the right to form.Once it enters the negotiation process,it will bear the obligation of good faith negotiation to ensure the effect of the exercise of the right to renegotiate.The legal effect of renegotiation under the right positioning in the change of situation is no longer the independent effect or the procedural element under the theory of obligation,but only a remedy for the change of situation.The following rules apply to renegotiation rights.First,the exercise of the right to renegotiate must meet the substantive and procedural conditions.Substantial changes in circumstances would be unfair to one party,and negotiations should be conducted within a reasonable time limit;procedurally exercising the right to renegotiation must explain the reason to prove that the situation has changed.As the right to form,it must be restricted by the period of exclusion,and the principle of good faith must be observed.Second,the "Civil Code",the subject of the exercise of the right to renegotiate,only stipulates that it is the "adversely affected party",but the other party also has the rationality and necessity to exercise it,which conforms to the principle of fairness.Third,the effect of renegotiating the exercise of rights.The performance can be suspended during the renegotiation process.Suspension of performance can prevent deliberate delay in malicious negotiation and reduce the complexity of the return of benefits afterwards.Anyone who violates regulations and exercises the right to renegotiate and causes damage to others shall be liable for compensation.Fourth,the obligation of good faith negotiation after the exercise of the right to renegotiate.The obligation of good faith negotiation is the obligation of both parties and the framework obligation,including proposing and responding to the negotiation plan.The unfavorable consequences of a breach of the obligation of good faith negotiation shall be mainly the unfavorable consequences in litigation,and the compensation for damages shall be supplemented,and the main consequences shall be reflected in the restriction of request for modification or termination of contract.The judicial remedy after the failure of good faith negotiation is to apply for the modification or termination of the contract.The order of contract modification or termination shall be chosen by the parties independently,and the judge shall not make a decision without authorization.