论情事变更与不可抗力的交融及界分——以新型肺炎疫情防控与疫后重建为契机

A Study on the Boundary and Distinction Between the Changed Circumstances and Force Majeure: in the Time of Novel Pneumonia Epidemic Prevention and Control and its Post Reconstruction

司法解释规定情事变更构成应排除不可抗力,但面对归属于不可抗力范畴的疫情引发的合同纠纷,法院却倾向于绕开现行规则裁判,以求结果的公平性。考察新型肺炎疫情发生后各地法院发布的指引类文件,上述现象更加凸显。究其原因,是不可抗力规则面临固有挑战,加之情事变更规则的适用范围又被现行规则不适当地予以限缩,故裁判者只能运用实践智慧完成规范续造,以追求良好的裁判结果。面对具体案件,应在承认疫情属于不可抗力的基础上,秉承鼓励交易的导向,允许裁判者类推适用情事变更的规定,并兼顾多种类型化要素,合理分配合同责任,以助力疫后重建工作有效展开。另外,民法典合同编改变了司法解释的立场,使不可抗力回归成为情事变更的发生事由之一,值得坚持。

Judicial interpretation specifies that the construction of changed circumstances shall exclude force majeure. Yet regarding the contract disputes triggered by epidemic, which falls into the field of force majeure, the courts tend to bypass the rules in force for the purpose of achieving fairness in the final judgement. Referring to the guidance documents issued by the local people’s courts after the outbreak of the epidemic, the said tendency has become more prominent. The reason is that the principle of force majeure has faced its inherent challenges and the application of the principle of changed circumstances has been inappropriately limited by the rules in force, and thus the adjudicator has to rely on its intelligence gained from practices to pursue an admirable result. Therefore, in specific cases, on the basis of admitting that epidemic is a force majeure and upholding the rule of encouraging business transactions, the adjudicator should be allowed to apply changed circumstances to subsequent cases and accept various types of changes so as to reasonably allocate contractual responsibilities, and thus facilitate the post epidemic reconstruction. In addition, the contract part of the Civil Code has changed the corresponding stand in judicial interpretation to provide force majeure as a cause in changed circumst ances, which should be continued.