摘要
情势变更原则具有内涵抽象、标准不明、极易被滥用的弊端,在理论和实践上具有极大争议。为正确把握情势变更原则的适用条件,妥当设置情势变更原则适用的法律后果,除参考各国立法例和理论研究成果之外,还应以总结裁判经验为最有效的研究方法。在研究判决材料的基础上,认知司法者对情势变更原则的理解程度和行动取向,可以为我国司法实践正确处理情势变更问题提供稳妥且具有可操作性的学理指引。
How to apply the principle of substantial change of circumstances is an inevitable problem of the contract law practice in every jurisdiction. The legislations, judicial precedents, theories and even international law are exploring, in various degrees, on the topics of whether or not to admit this principle, and how to define the conditions for applying it and its legal consequence. Our contract law has no clear provisions about this principle, but it is always deemed as an important legal problem in the realms of judicial practice and theoretical study. In 2009, the Supreme People＇s Court put in place the second crucial judicial interpretation concerning to the contract law, within which the principle of substantial change of circumstances is definitely listed as a specific legal institution applicable by the courts. The principle of substantial change of circumstances aims at rectifying the various negative effects of legal formalism and pursuing substantive justice in individual cases. Because the superordinate concept of this principle is the principles of justice and good faith, it is abstract in connotation, unclear in standard and easily abused, and has aroused much controversy theoretically and practically. In order to grasp the applicable requirements precisely, set up the applicable mechanism strictly and realize the safe application of this principle as far as possible, it is undoubtedly the most efficient research method to analyze, organize and summarize the precedents other than referencing to the diverse legislative patterns and theories of various countries. There are a great deal of precedents and case materials available on the judicial application of this principle home and abroad. What＇s more, our people＇s courts in different levels have formed abundant judgments on the application of this principle during the past 20 years. By applying the categorization method, we can promote the essences and inevitable mistakes abstracted from these judgments into theoretical model with intrinsic lo
出处
《法学研究》
CSSCI
北大核心
2010年第4期57-69,共13页
Chinese Journal of Law
基金
上海市教委第五期重点学科民法与知识产权的阶段性成果
学科编号BR432425
关键词
情势变更原则
类型化
法律解释
法律续造
the principle of substantial change of circumstances, categorization, law interpretation, law making by judicature
