论合同情势变更规则的法律适用

发布时间：2018-08-09 07:16

【摘要】：民法中存在一个十分古老的原则,即“契约必守”原则,简而言之,该原则的内涵就是义务人针对业已订立的合同必须进行全面、正确的履行,从而保障实现权利人所有的权利。该原则一方面重视交易的安全性与信赖保护,另一方面则十分重视合同对当事人的约束。但是对于“契约必守”这一原则的一个重要的例外就是“情势变更”规则,所谓的“情势变更”规则就是当出现合同在其成立之后发生了客观情况使得合同难以继续履行、无法实现合同订立之时的初衷,且该客观情况的发生并不是基于当事人方面的原因,当事人可以对合同进行变更。作为大陆法系中的一项特有的规则,“情势变更”规则受到了社会各界越来越多的重视。具体而言,当合同成立之后,由于在履行结束之前的客观情况发生了变化,如若继续要求负有履行义务的当事人继续履行该合同则会使得该当事人承受显失公平的结果,此刻,为实现公平正义与合理对当事人之间的权利义务进行平衡的目标与价值追求,法律允许当事人在免责的状态下对原合同进行变更,这即是我们通常所言的情势变更规则的涵义。对于该规则的存与废,我国的理论界与学术界一直争论不休,但是目前随着世界经济发展的速度日益加速,我国社会经济的发展遭遇了众多难以预料的状况,例如天灾、国家政策变化、金融危机的全球化等等,这些突发性的状况对合同的履行的影响十分巨大,当这些突发性的状况出现时,我们就需要运用情势变更规则对其进行合理调整。2009年,我国正式颁布实施《合同法解释(二)》,在总结理论研究的成果的基础上,结合我国的现实国情,通过该司法解释使得“情势变更”规则在我国正式确定了。然而,由于缺乏统一而明确的关于如何在合同履行过程中具体适用“情势变更”规则,给我国的司法实践带来了不少挑战。我国目前处于经济转型的接轨过程与社会改革的攻坚阶段,由于交易的安全性与稳定性有待加强导致交易不公平的现象时常出现,法律的立、改、废的情况也时常出现,这就会导致合同在订立之时是合法的,而在履行的过程中可能会变得不合法,显然,当事人在订立合同的过程中几乎没有可能会预料到这种情况的发生,假设我们在这种情况下仍然基于双方当事人自愿订立的合同不能解除或者变更的话,当事人的利益就会基于情势的变化而受到损害,同时也会增加当事人对于未来风险的担忧而不愿意订立合同,这反而不利于社会经济的发展进步。情势变更规则一方面可以减少社会发展风险,对失衡的利益进行平衡,对于调节经济的发展,实现实质的公平具有重要的意义；然而,他也是一把双刃剑,情势变更规则可能会由于司法权的滥用而对实质的公平与正义造成损害。在对情势变更规则进行论述的过程中,笔者运用了比较分析法、法学分析法、规范分析法、实证分析法等,期望能过通过分析对情势变更规则进行一次深入性的总结与分析,本文共分为四个部分：首先,笔者对情势变更规则的存在必要性进行论述,从其存在依据着手开始分析情势变更规则在我国存在的意义；其次,笔者通过与不可抗力以及商业风险等的对比,客观地论证了情势变更规则的缺陷之处；本文在创新之处是第三章,通过旅游合同、商品房买卖合同、建设工程合同以及劳动合同,具体研究情势变更规则在实际生活中的运用现状；针对上述论述,笔者在第四章提出了对我国情势变更规则的完善意见,期望能够抛砖引玉,对我国情势变更规则的立法与司法实践添砖加瓦。
[Abstract]:There is a very old principle in civil law, that is, the principle of "contract must be kept". In short, the connotation of the principle is that the obligor must carry out a comprehensive and correct implementation of the contract made by the obligor, so as to guarantee the right to realize all rights. On the one hand, the principle emphasizes the security of the transaction and the protection of trust, on the other hand, ten One important exception to the principle of "contract must be kept" is the "change of situation" rule. The so-called "change of situation" rule is the original intention of the contract when the contract has occurred after its establishment, which makes it difficult to carry out the contract and can not achieve the contract. And the occurrence of the objective situation is not based on the cause of the parties, and the parties can change the contract. As a special rule in the continental law system, the "change of circumstances" rule has been paid more and more attention by all walks of life. Specifically, when the contract is established, it is due to the objective situation before the completion of the performance. If the party continues to demand that the party carrying the obligation to perform the contract continues to perform the contract, the party will bear the result of unfairness. At the moment, in order to achieve a balanced goal and value pursuit for the realization of fair justice and reasonable rights and obligations between the parties, the law allows the parties to enter the original contract in the state of disclaimer. This is the meaning of the rule of changing the situation that we usually say. For the existence and waste of the rule, the theorists and academic circles of our country have been arguing all the time. But with the rapid development of the world economy, the development of our country's social economy has encountered many unpredictable conditions, such as the natural disaster and the change of national policy, The globalization of the financial crisis and so on, these sudden conditions have great influence on the performance of the contract. When these sudden conditions appear, we need to adjust the rules of situation to adjust it for.2009 years reasonably. China formally promulgates and implements the interpretation of Contract Law (two), on the basis of summarizing the results of theoretical research. According to the actual conditions of our country, the rule of "change of circumstances" has been formally established in our country through the judicial interpretation. However, due to the lack of unified and explicit rules on how to apply the "change of situation" in the process of contract performance, it has brought no little challenge to the judicial practice of our country. Because of the security and stability of the process and social reform, because the security and stability of the transaction need to be strengthened, the phenomenon of unfair trading often appears, and the situation of the establishment, modification and abolition of the law often appears, which will lead to the validity of the contract at the time of conclusion, and may become illegal in the process of performance. Obviously, the parties are concluding a contract. It is almost impossible to anticipate the occurrence of this situation, assuming that in this case we are still based on the failure or change of a contract made voluntarily by the parties, and the interests of the parties will be damaged based on the changes in the situation, and will also add to the fear of the future risks of the parties. It is not conducive to the progress of social and economic development by signing a contract, which can reduce the risk of social development on the one hand and balance the interests of the imbalance, which is of great significance for regulating the development of the economy and achieving substantial fairness. However, he is also a double-edged sword, and the rules of change of circumstances may be due to judicial power. In the process of discussing the change rules of the situation, the author uses the comparative analysis, the law analysis method, the normative analysis method, the empirical analysis method and so on. It is expected to carry on a deep analysis and analysis to the change rules of the situation through analysis. This article is divided into four parts: First, the author expounds the necessity of the existence of the rules of change of circumstances, and begins with the basis of its existence to begin to analyze the significance of the existence of the rules of change of circumstances in our country; secondly, the author objectively demonstrates the defects of the rules of the change of the situation through the contrast of force majeure and commercial risk, and the innovation of this article is the third chapter, Through the tourism contract, the commercial housing sale contract, the construction project contract and the labor contract, the present situation of the application of the change rules of the situation in the real life is concretely studied. In the fourth chapter, the author puts forward the perfect opinions on the change rules of the situation in our country. The judicial practice has been added to the bricks and mortar.
【学位授予单位】：广西大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.6

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