情势变更制度在房产新政下的适用及在我国民法体系建设中的展望
发布时间：2018-10-05 09:54
【摘要】：情势变更制度是《合同法》中的一项重要制度，而我国的《合同法》在立法之初，由于对该制度适用可能会出现问题的担忧，并没有将该制度写进法律，目前，只通过最高法院颁布的相关司法解释及指导意见配合民法基本原则予以审慎的适用，但在市场经济快速发展的今天，特别是一些诸如“非典”，“地震”等突发情况下产生的民事纠纷，对情势变更制度的“需求”越发的迫切，而在过去两年中，国家对房地产市场的宏观调控政策，导致了一些合同不能履行，从而引起了市场主体的纠纷，而在这一背景下，如何发挥好情势变更制度的作用，审判机关如何依靠有限的法律规定和模糊的原则解决实际问题就变得十分紧迫，并且，在我国加入WTO以后，法制的国际接轨也十分的迫切，这不仅关系到我国市场经济能否为外资进入提供良好的投资环境，，更关系到我国在国际经济体系下的切身利益能否得到保护，因此，对于情势变更制度，国家应尽快将相关法律加以完善，使得情势变更制度在我国享有在主流法律体系中应有的地位，从而不断完善我国的民事法规。 本文第一章主要概述了2010年国家出台的”新国十条”的内容,及由该政策引发的合同纠纷,从该案法院的判决结果,引出本文要探讨的情势变更制度。 第二章主要从情势变更的概念,由来,发展背景以及在我国的发展现状来分析情势变更制度是如何构成和适用的，以及从情势变更的构成要件上来分析了前述案例是否应适用情势变更制度以及在适用中应注重的问题。 第三章主要概述了情势变更在适用过程中应注意的问题，包括情势变更制度与相关概念的区别，以及如何限制法官的自由裁量权，同时还探讨了由情势变更制度引发的合同效力问题。 第四章和第五章，作为总结性的段落，阐述了本文对于情势变更制度在我国市场经济发展下具有的意义，以及对该制度在立法和司法上不断完善的一些展望。
[Abstract]:The regime of change of circumstances is an important system in the contract Law. At the beginning of our country's "contract Law", because of the concern that there may be problems in the application of the system, it has not been written into the law. At present, Only through the relevant judicial interpretation and guidance issued by the Supreme Court to be applied prudently in accordance with the basic principles of civil law, but today with the rapid development of the market economy, especially some such as SARS, Civil disputes arising from sudden events such as the "earthquake" have become more and more urgent for the "situation change" system. In the past two years, the state's macro-control policies on the real estate market have led to the failure of some contracts to be fulfilled. In this context, how to play a good role in the system of situation change, how to rely on limited legal provisions and vague principles to solve practical problems becomes very urgent. After China's entry into WTO, the international legal system is also very urgent, which is not only related to whether the market economy of our country can provide a good investment environment for foreign investment. It is also related to whether China's vital interests under the international economic system can be protected. Therefore, with regard to the regime of change of circumstances, the state should improve the relevant laws as soon as possible. So that the situation change system in our country has the status in the mainstream legal system, so as to improve our civil laws and regulations. The first chapter of this paper mainly summarizes the contents of the "New Ten articles" issued by the state in 2010, and the contract disputes caused by the policy. From the result of the judgment of the court in this case, it leads to the system of the change of circumstances to be discussed in this paper. The second chapter mainly analyzes how the situation change system is constituted and applied from the concept, origin, development background and current situation of situation change in our country. And from the constituent elements of the change of circumstances, this paper analyzes whether the former case should be applied to the system of the change of circumstances and the problems that should be paid attention to in the application. The third chapter mainly summarizes the problems that should be paid attention to in the course of application of the situation change, including the difference between the situation change system and the related concepts, and how to limit the discretion of the judge. At the same time, it also discusses the validity of the contract caused by the change of circumstances system. The fourth and fifth chapters, as the summative paragraphs, expound the significance of the system of situation change in the development of market economy of our country, and some prospects for the perfection of the system in legislation and judicature.
【学位授予单位】：重庆大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
本文编号：2252940
[Abstract]:The regime of change of circumstances is an important system in the contract Law. At the beginning of our country's "contract Law", because of the concern that there may be problems in the application of the system, it has not been written into the law. At present, Only through the relevant judicial interpretation and guidance issued by the Supreme Court to be applied prudently in accordance with the basic principles of civil law, but today with the rapid development of the market economy, especially some such as SARS, Civil disputes arising from sudden events such as the "earthquake" have become more and more urgent for the "situation change" system. In the past two years, the state's macro-control policies on the real estate market have led to the failure of some contracts to be fulfilled. In this context, how to play a good role in the system of situation change, how to rely on limited legal provisions and vague principles to solve practical problems becomes very urgent. After China's entry into WTO, the international legal system is also very urgent, which is not only related to whether the market economy of our country can provide a good investment environment for foreign investment. It is also related to whether China's vital interests under the international economic system can be protected. Therefore, with regard to the regime of change of circumstances, the state should improve the relevant laws as soon as possible. So that the situation change system in our country has the status in the mainstream legal system, so as to improve our civil laws and regulations. The first chapter of this paper mainly summarizes the contents of the "New Ten articles" issued by the state in 2010, and the contract disputes caused by the policy. From the result of the judgment of the court in this case, it leads to the system of the change of circumstances to be discussed in this paper. The second chapter mainly analyzes how the situation change system is constituted and applied from the concept, origin, development background and current situation of situation change in our country. And from the constituent elements of the change of circumstances, this paper analyzes whether the former case should be applied to the system of the change of circumstances and the problems that should be paid attention to in the application. The third chapter mainly summarizes the problems that should be paid attention to in the course of application of the situation change, including the difference between the situation change system and the related concepts, and how to limit the discretion of the judge. At the same time, it also discusses the validity of the contract caused by the change of circumstances system. The fourth and fifth chapters, as the summative paragraphs, expound the significance of the system of situation change in the development of market economy of our country, and some prospects for the perfection of the system in legislation and judicature.
【学位授予单位】：重庆大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6
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