在开放的体系中设立情势变更条款--兼评我国合同法第94条与第117条

我国现行合同法中"情势变更"制度立法缺位.针对社会发展的需要,我们亟待对情势变更做出法律规定.我国虽可继续使用"情势变更"的名称,但更适宜采取合同落空的广义内涵,建议将此制度列于合同法关于"合同的效力"一章中予以规定.

Formulating a Clause pursuant to Situation in an 0pen System--Review Concurrently on 94th Article and 117th Article of the Chinese Law of Agreement

The institution of "situation change" is missing in the law of agreement used generally today. To meet the needs of social development, a legal specification at situational change is emergent to be made. This paper attempts to study the relation of situational change and agreement without implementation to irresistible force starting from the theory of situational change. It finally explored the issue of adding up the clause of situational change in the Chinese law of agreement. According to this article, China should adopt the broad definition of agreement without implementation despite a continuing use of the name of "situational change". It also recommends that such an institution should be specified in the chapter of "effect of agreement" for the Chinese law of agreement.