情势变更若干理论问题的回顾与反思

情事变更理论学说众多,论调不一,究其根源,一是其由来已久,且系泊来品,在理解上各有千秋;二是在我国《合同法》中至今尚无相关立法。回顾已有的理论成果,固然有令人欣慰的一面,但其中也有不少观点值得商榷乃至批判,诸如情事变更的含义、称谓、性质、构成要件,与不可抗力和商业风险的区别等问题都存在重大分歧,留下了较大的模糊空间。反思情事变更的现有理论,总结其立法实践的经验教训,消除立法障碍,避免误导司法实践,正是法律人的迫切义务。

Recalling and Re-thinking upon Some Theoretical Problems of Change of Circumstances

There are many theories about Change of Circumstances but these views are different.The reason is as follows: First,it is a long-standing issue and each has his strong points in understanding.Second,there has been no relative regislation in our Contract Law up to now.Reviewing existing theoretical achievements,we are gratified at it.But there are also some points that need to be discussed and criticized,such as the meaning,title,nature and component pares about Change of Circumstances,and the difference between Change of circumstances and irresistible force,commercial risk and so on.There is significant difference among them and relatively larger fuzzy space.There is no definite theory about Change of Circumstances,so there are certainly serious obstacles in regislation.At least the pace of regislation will be slowed,but also that will mislead judicial practice.If we re-think the existing theory upon Change of Circumstances and summarize the experiences and lessons of judicial practice,in the hope of the right fruit,this will be our urgent duty.