Research On The Application Of The Principle Of Change Of Circumstances In Construction Project Contract

The principle of changed circumstances has been widely concerned and considered by scholars.Civil Code of the People’s Republic of China(hereafter referred to as the Civil Code)also inherits and innovates the previous relevant provisions,elevating the principle from judicial interpretation to the height of law.In judicial practice,construction project,as a kind of special named contract,is susceptible to the price increase of project elements,changes in national laws and policies,unexpected public events and other circumstances.Therefore,based on the limitations brought by the development of the construction engineering industry and the particularity of the construction engineering contract,it is necessary to study the application of the principle of changed circumstances in the construction project contract,which can better reflect the value of the system and avoid the deficiency of its application.However,in view of the prudence of judicial practice and the lack of judgment guidance,the application of the principle of changed circumstances in the construction project contract is facing legislative and judicial dilemmas.At the legislative level,there exists the unclearness of loss sharing standards and the period of exclusion when applying the principle of changed circumstances.At judicial level,the dilemma exists in applying the "renegotiation" system and the dispute in applying the principle of changed circumstances in construction projects contracts for projects with different pricing modes.Based on all the above mentioned,in order to ensure the correct application of the principle of changed circumstances in the construction project contract,to give full play to the effectiveness of the principle of changed circumstances,and to ensure that the reasonable litigation claims of the employer and the contractor are supported,the application of the principle of changed circumstances in the construction project contract can be optimized from the following aspects.First of all,it is necessary to perfect the provisions on the principle of changed circumstances in legislation.It includes three aspects: to make clear the identification standard of "circumstance","changed" and "obvious unfairness",to clearly stipulate the exclusion period of the principle of changed circumstance and to improve the administrative review system.Secondly,in order to protect the principle of abiding contract strictly and to maintain the stability of the construction project market,the "renegotiation" system should be taken as the pre-procedure of litigation or arbitration,permitting the parties to communicate and negotiate.Only after the exhaustion of personal and industrial relief,can the court or arbitration agency raise a lawsuit request.Thirdly,it is significant to perfect the standard of applying the principle of changed circumstances,which includes three aspects: reducing the alteration or termination of the contract as far as possible;considering the failure of the purpose of the contracts in different cases,and clarifying the loss sharing standard when applying the principle of changed circumstances.It is necessary to make it clear that the principle of changed circumstances can be applied to the construction project contract for projects with different pricing modes and can not be excluded,so as to fully safeguard the way for the parties to seek relief.