Research on Civil Clausula Rebus Sic Stantibus in Mainland China
| Autor: | Chiao-ya Cheng, 程巧亞 |
|---|---|
| Rok vydání: | 2012 |
| Druh dokumentu: | 學位論文 ; thesis |
| Popis: | 100 As a result of the enhancement of the trade relations between China and Taiwan, mainland China has become a major investment territory for Taiwan businessmen. It is, therefore, very important to understand the use of the uncertain legal concept - Clausula rebus sic stantibus (the principle of changed circumstance), and the operation of judicial practice in Mainland China. It is also important to know how to safeguard the compliance of contracts and maintain the fairness of performing contracts, and to prevent Clausula rebus sic stantibus being abused in judicial practice in the future. In addition, it is uncertain whether the cases of the application of the Clausula rebus sic stantibus can be legally recognized in the mutual judicial aid judgment framework, and this will affect enormously the parties’ rights and interests. Therefore, the thesis aims to analyze and explore the development and the practice of the Clausula rebus sic stantibus in China, in order to meet the needs of the trade between Taiwan and China in the future, and to prevent the unnecessary risks. First of all, the keynote of the Chapter II is an in-depth introduction to and a comparative analysis of the concepts of Clausula rebus sic stantibus, including its meaning, its origin, its development, the theoretical basis, its constituent elements and its legal effect, and the foundational principles in relation to the similar legal concepts. In Chapter III –the evolution of Clausula rebus sic stantibus discusses the development, the legislation, and the legal basis of the principle in Mainland China, particularly focusing on the comparative analysis of the legislation of this principle in relation to the two nations. In addition, Chapter IV - the latest requirements of Clausula rebus sic stantibus in Mainland China “the Contract Law explanation II, the 26th article” – analyzes and discusses the announcement background, the article analysis, and the other operational requirements relevant to “the Contract Law explanation II, the 26th article”. In chapter V - the judicial practice of Clausula rebus sic stantibus in Mainland China, the judicial practice cases are reviewed in order to understand their attitudes towards the application of this principle. The review shows that in China, the causes of Clausula rebus sic stantibus were widely recognized in practice. It is also clearly seen that in the judicial practice of China, the contents of contracts could be changed or rescinded after changed circumstance, and the caused damage would be compensated. Finally, in Chapter V, the conclusions and recommendations, this study suggests that the principle of changed circumstances should be legislated in Mainland China as soon as possible, and proposes four recommendations in relation to legislation. |
| Databáze: | Networked Digital Library of Theses & Dissertations |
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