商品房买卖合同适用情事变更原则研究

发布时间：2018-06-14 16:47

本文选题：限购政策 + 不可抗力　；参考：《安徽大学》2014年硕士论文

【摘要】：自从我国1998年正式实行住房商品化政策以来,我国的房地产市场经历了一系列的起起落落,而每当房地产市场处于风口浪尖的时刻,国家总是通过颁布宏观调控政策来力挽狂澜,最终达到改善市场状况的目的。2009年以来,这些宏观调控政策的出台更为密集,其政策的指向性变化也非常大,而2010年“新国十条”的出台更是令很多房地产开发商和购房者措手不及,尤其是使部分购房者遭遇了“钱房两失”的风险。在这种因国家宏观调控政策变化带来的风险面前,不可抗力和商业风险规则都有其适用上的限制,唯有将情事变更原则引入该类合同的纠纷,才足以有理有据的保障当事人的合法权益和维护民法公平正义的基本原则。尽管之前我国民事立法基于种种考虑而未将情事变更原则正式列入,但随着市场经济的不断发展,从立法上对各类合同风险进行规制乃是社会经济发展的大势所趋,是符合我国当前基本国情的。同时将情事变更的相关原则加以立法化,也更有利于我国民事法律的完善,有利于我国法制化进程的发展。情事变更原则的发展无论是在英美法系还是在大陆法系国家,都经历了一个非常曲折的过程。纵观该原则在各个国家的发展历程不难看出,各国民事立法对其都大致经历了一个果断排斥——谨慎适用——曲折发展——立法明确的过程,其在中国的发展历程也同样如此。我国改革开放初期曾将情事变更原则写入立法,后又由于种种原因而将这一规定删除,最后又以司法解释的形式加以确立,并规定了较为严厉的适用条件,可谓是“名不正者言不顺”。而这几十年来,理论界关于该原则是否应当写入立法也一直是争论不休,反对者认为该原则与不可抗力和商业风险都有重合的部分,且正式立法有被部分法官和当事人滥用之嫌；而赞成者则认为情事变更原则立法符合我国当前社会经济发展的需要,其指导价值远远大于弊端,并且只要运用得当,在立法上加以完备,就可以解决诸如国家宏观调控政策等非当事人主观意志的强大因素给合同的履行带来的影响,而不会造成当前尽管司法解释有关于情事变更原则的规定,对于大多数基层法院来说却因为适用条件较为严苛而形同虚设的状况。本文试从房地产限购新政策的出台对商品房买卖合同履行的影响角度来分析情事变更原则在这一领域的应用,目的在于说明在我国当前的经济形势下,情事变更原则的适用对于解决理论和实践上的合同纠纷都具有重要的指导意义,为该类当事人意志以外非不可抗力对合同履行造成的影响提供解决的法律依据。
[Abstract]:Since our country formally implemented the housing commercialization policy in 1998, the real estate market of our country has experienced a series of ups and downs, and whenever the real estate market is at the top of the tide, The state always tries to reverse the tide by promulgating macroeconomic control policies, and finally achieves the goal of improving the market situation. Since 2009, these macro-control policies have been more intensive, and their policies have changed very much in their directionality. In 2010, many property developers and home buyers were caught unprepared by the introduction of the "new ten national rules," especially the risk that some buyers have suffered the "loss of money and housing". In the face of this kind of risk caused by the change of national macro-control policy, both the force majeure and commercial risk rules have their applicable limitations. Only by introducing the principle of circumstance change into the dispute of this kind of contract, It is sufficient to protect the legitimate rights and interests of the parties and to safeguard the basic principles of fairness and justice in civil law. Although the principle of circumstance change was not formally included in the civil legislation of our country based on various considerations, with the continuous development of the market economy, it is the trend of social and economic development to regulate the risks of various kinds of contracts in legislation. Is in line with China's current basic national conditions. At the same time, it is beneficial to the perfection of our civil law and the development of our country's legalization process to legislate the relevant principles of circumstance change. The development of the principle of change of events has gone through a very tortuous process both in the common law system and in the continental law system countries. Looking at the development course of the principle in various countries, it is not difficult to see that the civil legislation of various countries has generally experienced a decisive exclusion-prudent application-tortuous development-clear process of legislation, and so has its development course in China. At the beginning of reform and opening up, the principle of change of circumstances was written into the legislation, and then, for various reasons, this provision was deleted, and finally it was established in the form of judicial interpretation, and the more severe conditions of application were stipulated. It can be said that "the wrong name is not true to the words." Over the past few decades, theoretical circles have been debating whether the principle should be incorporated into legislation, with opponents arguing that it overlaps with force majeure and commercial risks. The formal legislation has been abused by some judges and parties, while the proponents think that the legislation of the principle of change of events conforms to the needs of the current social and economic development of our country, and its guiding value is far greater than the malpractice, and if it is properly applied, If the legislation is complete, it will be possible to solve the impact on the performance of the contract caused by strong factors such as the subjective will of the non-party, such as the national macro-control policy, without causing the current judicial interpretation to contain provisions on the principle of change of circumstances, For most of the basic courts, because of the more stringent application conditions and virtual situation. This paper tries to analyze the application of the principle of change of events in this field from the perspective of the impact of the new policy of restricting the purchase of real estate on the performance of the contract for the sale of commercial housing. The purpose of this paper is to explain the current economic situation in China. The application of the principle of circumstance change is of great significance to the settlement of contract disputes in theory and practice, and provides the legal basis for solving the influence of non-force majeure on the performance of the contract caused by the non-force majeure outside the will of the parties concerned.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D923.6

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