論情勢變更原則及其在房產(chǎn)新政下的適用
發(fā)布時間：2018-09-06 15:09
【摘要】：自12世紀(jì)“情勢不變條款”出現(xiàn)以來，情勢變更原則在歷史幾百年的長河中不斷發(fā)展，形成了一套完整的制度，并最終為世界各國立法所接受，成為民法中一個重要的制度。我國對情事變更原則爭議較大，在1999年頒布的合同法中并沒有將該原則納入其中。直到2009年，最高人民法院為了適應(yīng)變化急劇的經(jīng)濟環(huán)境需要，在出臺的《中華人民共和國合同法》若干問題的解釋(二)正式確立了情勢變更制度。不可否認(rèn)情事變更原則在我國的發(fā)展起步較晚，規(guī)定也較為原則化，特別是當(dāng)前各地方政府部門為打壓房地產(chǎn)市場，相繼出臺調(diào)控政策所引起的大量房屋買賣合同糾紛，如何界定情勢變更，區(qū)分情勢變更與周邊制度，如何在這類糾紛中有效運用情勢變更原則，解決履約中的異常艱難問題，，是值得法律學(xué)人深入思考的問題。 本文以理論與實踐相結(jié)合的思想為指導(dǎo)，采用文獻研究法、案例分析法和經(jīng)驗總結(jié)法具體研究情勢變更原則的一般適用以及在房產(chǎn)調(diào)控中的具體適用。首先，文章第一章介紹了情勢變更原則的由來，歸納了大陸法系和英美法系關(guān)于情勢變更原則理論基礎(chǔ)的各種觀點，并總結(jié)了新中國成立以來情勢變更原則在我國立法界和司法界的適用情況及特點。第二章論述了情勢變更的構(gòu)成要件，旨在解決對情勢變更的一般認(rèn)定；第三章分析了情勢變更與不可抗力、商業(yè)風(fēng)險等周邊概念的界限，以期在司法實踐中能對其作出明確的區(qū)分；第四章是對情勢變更原則在樓市調(diào)控政策中的適用探究，該部分是本文的重點也是難點，從分析情勢變更原則在樓市調(diào)控政策中適用的必要性入手，對各種樓市調(diào)控政策類型進行分析對比，找出適用情事變更原則的情形。
[Abstract]:Since the appearance of the "situation invariant clause" in the 12th century, the principle of change of circumstances has been developing continuously in the long river of hundreds of years, forming a complete system, and finally being accepted by the legislation of countries all over the world, becoming an important system in the civil law. The principle of circumstance change is controversial in China, which was not included in the contract law promulgated in 1999. Until 2009, in order to adapt to the rapidly changing economic environment, the Supreme people's Court formally established the system of situation change in the interpretation of several issues in the contract Law of the people's Republic of China. There is no denying that the principle of alteration of circumstances started relatively late in the development of our country, and the regulations are also more principled. Especially, in order to suppress the real estate market, various local government departments have successively introduced a large number of disputes arising from the regulation and control policies on the sale of housing contracts. How to define the situation change, how to distinguish the situation change from the peripheral system, how to effectively apply the principle of situation change in this kind of dispute, and how to solve the exceptionally difficult problem in the performance of the contract are worthy of further consideration by the legalists. Under the guidance of the combination of theory and practice, this paper adopts the literature research method, the case analysis method and the experience summary method to study the general application of the principle of situation change as well as the concrete application in the real estate regulation and control. First of all, the first chapter introduces the origin of the principle of change of circumstances, summarizes the civil law system and Anglo-American law system on the theoretical basis of the principle of change of circumstances, It also summarizes the application and characteristics of the principle of situation change in the legislative and judicial circles of China since the founding of the people's Republic of China. The second chapter discusses the constitutive elements of the change of situation, aiming at solving the general determination of the change of situation. Chapter three analyzes the boundary of the peripheral concepts of situation change and force majeure, commercial risk, etc. In order to make a clear distinction in the judicial practice; the fourth chapter is to explore the application of the principle of change of circumstances in the property market regulation and control policy, this part is the focus of this article is also a difficult point, Based on the analysis of the necessity of the application of the principle of situation change in the regulation and control policy of the real estate market, this paper analyzes and compares the types of the policy of regulating and controlling the property market, and finds out the situation in which the principle of change of circumstances applies.
【學(xué)位授予單位】：華東政法大學(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：2226732
[Abstract]:Since the appearance of the "situation invariant clause" in the 12th century, the principle of change of circumstances has been developing continuously in the long river of hundreds of years, forming a complete system, and finally being accepted by the legislation of countries all over the world, becoming an important system in the civil law. The principle of circumstance change is controversial in China, which was not included in the contract law promulgated in 1999. Until 2009, in order to adapt to the rapidly changing economic environment, the Supreme people's Court formally established the system of situation change in the interpretation of several issues in the contract Law of the people's Republic of China. There is no denying that the principle of alteration of circumstances started relatively late in the development of our country, and the regulations are also more principled. Especially, in order to suppress the real estate market, various local government departments have successively introduced a large number of disputes arising from the regulation and control policies on the sale of housing contracts. How to define the situation change, how to distinguish the situation change from the peripheral system, how to effectively apply the principle of situation change in this kind of dispute, and how to solve the exceptionally difficult problem in the performance of the contract are worthy of further consideration by the legalists. Under the guidance of the combination of theory and practice, this paper adopts the literature research method, the case analysis method and the experience summary method to study the general application of the principle of situation change as well as the concrete application in the real estate regulation and control. First of all, the first chapter introduces the origin of the principle of change of circumstances, summarizes the civil law system and Anglo-American law system on the theoretical basis of the principle of change of circumstances, It also summarizes the application and characteristics of the principle of situation change in the legislative and judicial circles of China since the founding of the people's Republic of China. The second chapter discusses the constitutive elements of the change of situation, aiming at solving the general determination of the change of situation. Chapter three analyzes the boundary of the peripheral concepts of situation change and force majeure, commercial risk, etc. In order to make a clear distinction in the judicial practice; the fourth chapter is to explore the application of the principle of change of circumstances in the property market regulation and control policy, this part is the focus of this article is also a difficult point, Based on the analysis of the necessity of the application of the principle of situation change in the regulation and control policy of the real estate market, this paper analyzes and compares the types of the policy of regulating and controlling the property market, and finds out the situation in which the principle of change of circumstances applies.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D923.6
【引證文獻】
相關(guān)碩士學(xué)位論文 前1條
1 李樹馨;情勢變更制度比較研究[D];大連海事大學(xué);2013年
本文編號：2226732
本文鏈接：http://www.sikaile.net/falvlunwen/hetongqiyue/2226732.html
