情勢變更制度在房產(chǎn)新政下的適用及在我國民法體系建設(shè)中的展望
發(fā)布時間：2018-10-05 09:54
【摘要】：情勢變更制度是《合同法》中的一項重要制度，而我國的《合同法》在立法之初，由于對該制度適用可能會出現(xiàn)問題的擔憂，并沒有將該制度寫進法律，目前，只通過最高法院頒布的相關(guān)司法解釋及指導(dǎo)意見配合民法基本原則予以審慎的適用，但在市場經(jīng)濟快速發(fā)展的今天，特別是一些諸如“非典”，“地震”等突發(fā)情況下產(chǎn)生的民事糾紛，對情勢變更制度的“需求”越發(fā)的迫切，而在過去兩年中，國家對房地產(chǎn)市場的宏觀調(diào)控政策，導(dǎo)致了一些合同不能履行，從而引起了市場主體的糾紛，而在這一背景下，如何發(fā)揮好情勢變更制度的作用，審判機關(guān)如何依靠有限的法律規(guī)定和模糊的原則解決實際問題就變得十分緊迫，并且，在我國加入WTO以后，法制的國際接軌也十分的迫切，這不僅關(guān)系到我國市場經(jīng)濟能否為外資進入提供良好的投資環(huán)境，，更關(guān)系到我國在國際經(jīng)濟體系下的切身利益能否得到保護，因此，對于情勢變更制度，國家應(yīng)盡快將相關(guān)法律加以完善，使得情勢變更制度在我國享有在主流法律體系中應(yīng)有的地位，從而不斷完善我國的民事法規(guī)。 本文第一章主要概述了2010年國家出臺的”新國十條”的內(nèi)容,及由該政策引發(fā)的合同糾紛,從該案法院的判決結(jié)果,引出本文要探討的情勢變更制度。 第二章主要從情勢變更的概念,由來,發(fā)展背景以及在我國的發(fā)展現(xiàn)狀來分析情勢變更制度是如何構(gòu)成和適用的，以及從情勢變更的構(gòu)成要件上來分析了前述案例是否應(yīng)適用情勢變更制度以及在適用中應(yīng)注重的問題。 第三章主要概述了情勢變更在適用過程中應(yīng)注意的問題，包括情勢變更制度與相關(guān)概念的區(qū)別，以及如何限制法官的自由裁量權(quán)，同時還探討了由情勢變更制度引發(fā)的合同效力問題。 第四章和第五章，作為總結(jié)性的段落，闡述了本文對于情勢變更制度在我國市場經(jīng)濟發(fā)展下具有的意義，以及對該制度在立法和司法上不斷完善的一些展望。
[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.
【學(xué)位授予單位】：重慶大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D923.6
本文編號：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.
【學(xué)位授予單位】：重慶大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D923.6
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