论情势变更原则及其在房产新政下的适用
发布时间：2018-09-06 15:09
【摘要】：自12世纪“情势不变条款”出现以来，情势变更原则在历史几百年的长河中不断发展，形成了一套完整的制度，并最终为世界各国立法所接受，成为民法中一个重要的制度。我国对情事变更原则争议较大，在1999年颁布的合同法中并没有将该原则纳入其中。直到2009年，最高人民法院为了适应变化急剧的经济环境需要，在出台的《中华人民共和国合同法》若干问题的解释(二)正式确立了情势变更制度。不可否认情事变更原则在我国的发展起步较晚，规定也较为原则化，特别是当前各地方政府部门为打压房地产市场，相继出台调控政策所引起的大量房屋买卖合同纠纷，如何界定情势变更，区分情势变更与周边制度，如何在这类纠纷中有效运用情势变更原则，解决履约中的异常艰难问题，，是值得法律学人深入思考的问题。 本文以理论与实践相结合的思想为指导，采用文献研究法、案例分析法和经验总结法具体研究情势变更原则的一般适用以及在房产调控中的具体适用。首先，文章第一章介绍了情势变更原则的由来，归纳了大陆法系和英美法系关于情势变更原则理论基础的各种观点，并总结了新中国成立以来情势变更原则在我国立法界和司法界的适用情况及特点。第二章论述了情势变更的构成要件，旨在解决对情势变更的一般认定；第三章分析了情势变更与不可抗力、商业风险等周边概念的界限，以期在司法实践中能对其作出明确的区分；第四章是对情势变更原则在楼市调控政策中的适用探究，该部分是本文的重点也是难点，从分析情势变更原则在楼市调控政策中适用的必要性入手，对各种楼市调控政策类型进行分析对比，找出适用情事变更原则的情形。
[Abstract]:Since the appearance of the "situation invariant clause" in the 12th century, the principle of change of circumstances has been developing continuously in the long river of hundreds of years, forming a complete system, and finally being accepted by the legislation of countries all over the world, becoming an important system in the civil law. The principle of circumstance change is controversial in China, which was not included in the contract law promulgated in 1999. Until 2009, in order to adapt to the rapidly changing economic environment, the Supreme people's Court formally established the system of situation change in the interpretation of several issues in the contract Law of the people's Republic of China. There is no denying that the principle of alteration of circumstances started relatively late in the development of our country, and the regulations are also more principled. Especially, in order to suppress the real estate market, various local government departments have successively introduced a large number of disputes arising from the regulation and control policies on the sale of housing contracts. How to define the situation change, how to distinguish the situation change from the peripheral system, how to effectively apply the principle of situation change in this kind of dispute, and how to solve the exceptionally difficult problem in the performance of the contract are worthy of further consideration by the legalists. Under the guidance of the combination of theory and practice, this paper adopts the literature research method, the case analysis method and the experience summary method to study the general application of the principle of situation change as well as the concrete application in the real estate regulation and control. First of all, the first chapter introduces the origin of the principle of change of circumstances, summarizes the civil law system and Anglo-American law system on the theoretical basis of the principle of change of circumstances, It also summarizes the application and characteristics of the principle of situation change in the legislative and judicial circles of China since the founding of the people's Republic of China. The second chapter discusses the constitutive elements of the change of situation, aiming at solving the general determination of the change of situation. Chapter three analyzes the boundary of the peripheral concepts of situation change and force majeure, commercial risk, etc. In order to make a clear distinction in the judicial practice; the fourth chapter is to explore the application of the principle of change of circumstances in the property market regulation and control policy, this part is the focus of this article is also a difficult point, Based on the analysis of the necessity of the application of the principle of situation change in the regulation and control policy of the real estate market, this paper analyzes and compares the types of the policy of regulating and controlling the property market, and finds out the situation in which the principle of change of circumstances applies.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
本文编号：2226732
[Abstract]:Since the appearance of the "situation invariant clause" in the 12th century, the principle of change of circumstances has been developing continuously in the long river of hundreds of years, forming a complete system, and finally being accepted by the legislation of countries all over the world, becoming an important system in the civil law. The principle of circumstance change is controversial in China, which was not included in the contract law promulgated in 1999. Until 2009, in order to adapt to the rapidly changing economic environment, the Supreme people's Court formally established the system of situation change in the interpretation of several issues in the contract Law of the people's Republic of China. There is no denying that the principle of alteration of circumstances started relatively late in the development of our country, and the regulations are also more principled. Especially, in order to suppress the real estate market, various local government departments have successively introduced a large number of disputes arising from the regulation and control policies on the sale of housing contracts. How to define the situation change, how to distinguish the situation change from the peripheral system, how to effectively apply the principle of situation change in this kind of dispute, and how to solve the exceptionally difficult problem in the performance of the contract are worthy of further consideration by the legalists. Under the guidance of the combination of theory and practice, this paper adopts the literature research method, the case analysis method and the experience summary method to study the general application of the principle of situation change as well as the concrete application in the real estate regulation and control. First of all, the first chapter introduces the origin of the principle of change of circumstances, summarizes the civil law system and Anglo-American law system on the theoretical basis of the principle of change of circumstances, It also summarizes the application and characteristics of the principle of situation change in the legislative and judicial circles of China since the founding of the people's Republic of China. The second chapter discusses the constitutive elements of the change of situation, aiming at solving the general determination of the change of situation. Chapter three analyzes the boundary of the peripheral concepts of situation change and force majeure, commercial risk, etc. In order to make a clear distinction in the judicial practice; the fourth chapter is to explore the application of the principle of change of circumstances in the property market regulation and control policy, this part is the focus of this article is also a difficult point, Based on the analysis of the necessity of the application of the principle of situation change in the regulation and control policy of the real estate market, this paper analyzes and compares the types of the policy of regulating and controlling the property market, and finds out the situation in which the principle of change of circumstances applies.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
【引证文献】
相关硕士学位论文 前1条
1 李树馨;情势变更制度比较研究[D];大连海事大学;2013年
本文编号：2226732
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