情势变更原则的借鉴与适用

指出情势变更原则是现代合同法中的一项基本制度。介绍了情势变更原则的内涵及理论基础 ;运用比较法分析了大陆法中情势变更原则及英美法中合同落空理论的规定与适用。我国《合同法》没有规定情势变更原则 ,但是 ,情势变更原则在我国也有其适用基础和必要性 ,因为情势变更是商品经济条件下固有的风险。“入世”后 ,我国的企业在激烈的国际市场竞争中难免会遇到各种各样的风险 ,而情势变更的发生更是不可避免。因此 ,在司法实践中正确地理解并运用这一原则 ,不仅可以有效地保护我国企业的合法利益 ,而且能够促进我国在这方面的立法早日与国际惯例接轨。所以在借鉴大陆法及英美法司法实践经验基础上 ,提出了在我国司法实践中适用情势变更原则应从严把握的几个条件。

The Application and Use of the Principle of Changing of State of Affairs for Reference

The thesis points out the principle of changing of state of affairs is a basic system in modern contract law. It also introduces the meaning and theoretical basis of the principle of changing of state of affairs, analyses the stipulation and application of the principle of changing of state of affairs in continental law system and the theory of frustration of contract in common law system with comparative method. The principle of changing of state of affairs is not stipulated in the contract law of our country, but it has the foundation and necessity to be applied in our country, because the changing of state of affairs is a connatural risk in the condition of commodity economy. With the entering into WTO, our enterprises must be meeting with all kinds of risks in the intense competition in international market, and the changing of state of affairs is even harder to avoid. So understanding and applying this principle correctly in judicatory practice can not only protect the legal interests of our enterprises effectively, but also promote our legislation in this aspect to meet with international customs. This thesis points out some conditions that we should hold strictly in applying the principle of changing of state of affairs in our judicatory practice, on the basis of using the experience of judicatory practice in the continental law system and common law system.