情事变更原则适用的若干问题探析

情事变更原则在许多国家的立法中得到确认,但我国没有将其写进新《合同法》。情事变更原则适用的条件是:须发生情事变更的事实;须发生在合同成立后履行终止前;当事人所不能预见等。情事变更与不可抗力、商业风险是不同的概念不能混为一谈,明确规定情事变更原则不会导致法官权利滥用,且随着司法实践中对情事变更原则的需要,未来的立法应确立该原则。

Analysis of Certain Issues that Is the Principle of Changed Circumstances Applicable

The principle of changed circumstances is included in legislation of many countries,but it is excluded in China’s new Contract Law.The applicable conditions of the principle of changed circumstances include: fact that changed circumstances has taken place;the time changed circumstances has taken place is after the establishment of contract and before its termination;parties to the contract cannot foresee the changed circumstances,etc.Changed circumstances is different concept from force majeure and commercial risk.Clear stipulation of the principle of changed circumstances will not lead to the abuse of rights by judges.However,with the need of the principle of changed circumstances in judicial practice arising,the future legislation should establish such principle.