Research On The System Of Negotiating Again In The Change Of Circumstances

At the beginning of 2019,the New Crown epidemic began and in 2022 the New Crown epidemic was declared to be over.Although the epidemic,which lasted for three years,came to an end,the epidemic also gave rise to many disputes over difficulties in the performance of contracts and failure to perform,and at this time the renegotiation procedure in the modification of circumstances played an important role in dealing with these disputes and also attracted renewed attention from the theoretical and judicial circles.The renegotiation procedure,as a consultation mechanism under the change of circumstances,was established by Article 533 of the Civil Code in 2020 through the content of "renegotiation",but it is only a framework provision,and its nature,specific procedures and specific applications are not clear.At present,most academics are discussing the "obligation to renegotiate",but whether this provision in the legislation is the same as the so-called "obligation to renegotiate",how this system is characterised,how it is applied in judicial practice,and how it relates to other legal effects of the change of circumstances.It is worthwhile for us to think about the relationship between this system and other legal effects of the change of circumstances,which will be of great significance for our future response to the epidemic and related emergencies.In this paper,I analyse the current situation and the problems of the re-crossing system from the case of re-crossing during an epidemic,and then systematically study the re-crossing system in China,taking into account the actual situation in China and drawing on the practical experience of international,Japanese and German countries.From the macro aspect,the primary problem of the current re-negotiation system is the qualitative issue,mainly the rights and obligations theory,and the micro aspect is mainly the specific procedural aspect.Combined with the current situation of judicial application in China,there are mainly difficulties in defining the subjects proposed by the re-negotiation system,the unclear positioning of the re-negotiation system,the interface between the procedures of the re-negotiation system and the mediation procedures,the content of the re-negotiation system is too general,and the judicial authority The problems of judicial intervention and other problems.The relevant provisions of international commercial legislation and European contract law,which characterise it as an obligation,as well as Japan and Germany,which provide penalties for breach of the obligation to renegotiate in terms of remedies,are all worthy of our reference.To address the questions raised above and combined with useful experiences outside the domain,From the reconstruction of the renegotiation system from the reality of our country,Macroscopically rationalize the legal nature,Clarify the obligation attribute of the re-negotiation system,Microscopic program refinement of the specific procedures,On the one hand,we set up the framework of the re-negotiation procedure,Involving opening conditions,specific steps,reasonable time limit,burden of proof,presenting subject,etc.,On the other hand,improve the content of different stages of negotiation,Including obligations at the beginning of negotiation,obligations in the negotiation process,obligations after the completion of negotiations,And standardize the legal effect of the re-negotiation system,including the status in the legal effect of the situation changes,The focus is on stipulating the relevant legal sanctions for the violation of the re-negotiation obligations,Including the consequences of non-interest in litigation,restrictions and alteration of contract adjustment authority,and damages,To further protect the interests of the adversely affected parties.