《民法典》情势变更制度适用的新发展和完善

Article 533 in the Civil Code of the People’s Republic of China provides for the first time the regulation of change of circumstances, compared with the provisions in the previous judicial interpretation, the wording has the possibility of including the issue of the motivational mistakes of both parties, but the legislator does not expressly indicate whether Article 533 deals with this issue. Man should pay attention to the difference between change of circumstances in Article 533 and serious misunderstanding in Article 147 in terms of their functions and legal consequences in the interpretation. The relevant provisions in the Civil Code of the People’s Republic of China show that the system of mistakes-regulations in Chinese law still follows the civil law tradition, distinguishing between motivational mistake and other types of mistakes. Article 533 can be used as an exception to the rule that “motivational mistakes are in principle irrevocable”, and the legal consequence to rectify the contract is more flexible than that of serious misunderstanding in Article 147. The deletion of the term “force majeure” in Article 533 is justified by the fact that the systemic functions and legal consequences of the regulations of change of circumstances and force majeure in the Civil Code of the People’s Republic of China are different.Force majeure is the only exemption from liability for breach of contract in Chinese law, whereas the change of circumstances is not, but it can providethe parties with possibilities of renegotiation and continuation of performance, which are not available in the regulations of force majeure. In China’s recent judicial practice and doctrine, the regulation of change of circumstances is extended applied in the cases of donation of real estate between spouses and in the cases of loaning to purchase residential housing. For the former, the direction that by applying the regulation of change of circumstances to achieve the limitation of the donor’s right to revoke the gift prior to the transfer of the rights in the gifted property should be recognized, but this is not the only path, condictio ob rem is also a possibility; to the latter, house sales contract and loan contract can be linked contracts instead of being basis of contract for each other. For the future improvement of the regulation of change of circumstances, the meaning of “commercial risk” in Article 533 should be clarified, and its contents should be interpreted based on various factors as well as risk allocation inherent in the contract. Whether re-negotiation take place should be determined due to the possibility of rectification of the contract. The intentions of the parties play an important role to rectify or rescind the contract, in order to limit the judge’s discretion.